F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 27 August 2020

Decision of the

Dispute Resolution Chamber

passed on 27 August 2020,

regarding an employment-related dispute concerning the player Marko Milinkovic

COMPOSITION:

Omar Ongaro (Italy), Deputy Chairman Tomislav Kasalo (Croatia), member Jérôme Perlemuter (France), member

CLAIMANT

Marko Milinkovic, Serbia

represented by Mr Mićo Petković

RESPONDENT:

ESKISEHIRSPOR KULUBU, Turkey

I. FACTS OF THE CASE

1. On an unspecified date, the Claimant and the Respondent concluded an employment contract (hereinafter: the contract), valid as from 30 January 2019 until 31 May 2021.

2. According to the contract, the Respondent undertook to pay the Claimant the total amount of EUR 150,000 for the 2018-2019 football season as follows:

“-25,000 EUR will be paid to the bank account to be specified by the football player on the date when the contract is signed on 30.01.2019.

-25,000 EUR will be paid to the bank account to be specified by the football player on the date when the contract is signed on 23.02.2019.

-The remaining 100,000 EUR will be paid in the following manner;

20,000 EUR on 28.02.2019

20,000 EUR on 30.03.2019

20,000 EUR on 30.04.2019

20,000 EUR on 30.05.2019

20,000 EUR on 30.06.2019

If the Club will play in TFF 1. League in the football season of 2019/2020: The total amount of net 230,000 euro will paid for the 2019-2020 football season in the following manner;

- The advance payment of 50,000 EUR will be paid on 10/09/2019 to the bank account to be specified by the football player.

-The remaining 200,000 EUR will be paid in the following manner;

20,000 EUR on 30.08.2019

20,000 EUR on 30.09.2019

20,000 EUR on 30.10.2019

20,000 EUR on 30.11.2019

20,000 EUR on 30.012.2019

20,000 EUR on 30.01.2020

20,000 EUR on 28.02.2020

20,000 EUR on 30.03.2020

20,000 EUR on 30.04.2020

20,000 EUR on 30.05.2020

If the Club will play in TFF 1. League in the football season of 2020/2021: The total amount of net 250.000 EUR will paid for the 2020-2021 football season in the following manner.

-The advance payment of 50,000 EUR will be paid on 10/09/2020 to the bank account to be specified by the football player.

-The remaining 200,000 EUR will be paid in the following manner;

20,000 EUR on 30.08.2020

20,000 EUR on 30.09 .2020

20,000 EUR on 30.10.2020

20,000 EUR on 30.11.2020

20,000 EUR on 30.12.2020

20,000 EUR on 30.01.2021

20,000 EUR on 28.02.2021

20,000 EUR on 30.03.2021

20,000 EUR on 30.04.2021 and 20,000 EUR on 30.05.2021

If the club is entitled to play in the super league in the 2019/2020-2020/2021 football seasons, the football player will be entitled to receive a payment of 450,000 EURO for each of the 2019-2020, 2020-2021 football seasons in total as determined below, if the Club is entitled to play in Super League for the 2019-2020, 2020-2021 football seasons. In case the Club will play in Super League during the football seasons of 2019/2020, 2020/2021, in each of the 2019/2020, 2020/2021 football seasons, the Player shall be entitled to the below mentioned amounts only, and the other remunerations and payments regarding 2019/2020, 2020/2021 which stated in this contract shall be null and void.

- The total amount of net 450,000 EUR will be paid for the 2019 -2020 football season in the following manner:

- The advance payment of 150,000 EUR will be paid on 10/09/2019 to the bank account to be specified by the football.

-The remaining 300,000 EUR will be paid in the following manner;

30,000 EUR on 30.08.2019

30,000 EUR on 30.09.2019

30,000 EUR on 30.10.2019

30,000 EUR on 30.11.2019

30,000 EUR on 30.12.2019

30,000 EUR on 30.01.2020

30,000 EUR on 28.02.2 020

30,000 EUR on 30.03.2020

30,000 EUR on 30.04.2020

30,000 EUR on 30.05.2020

The total amount of net EUR 450,000 will be paid for the 2020-2021 football season in the following manner.

-The advance payment of 150,000 EUR will be paid on 10/09/2020 to the bank account to be specified by the football player.

-The remaining 300,000 EUR will be paid in the following manner;

30,000 EUR on 30.08.2020

30,000 EUR on 30.09.2020

30,000 EUR on 30.10.2020

30,000 EUR on 30.11.2020

30,000 EUR on 30.12.2020

30,000 EUR on 30.01.2021

30,000 EUR on 28.02.2021

30,000 EUR on 30.03.2021

30,000 EUR on 30.04.2021

30,000 EUR on 30.05.2021

Other conditions:

Bonus payment: “In the event that the club is entitled to move to the TFF Super League during the 2018-2019, 2019-2020, 2020-2021 football seasons an extra payment in the amount of 50,000 EURO will be made to the football player”.

Fringe benefits: “The player will be paid at amount of total 7.500 euros for house rental, vehicle rental and flight ticket for 2018/2019 season. The player will be paid at amount of total of 15.000 euros for house rental, vehicle rental and flight ticket for 2019/2020 at the latest 1st August 2’19. The player will be paid [an] amount of 15.000 euros for house rental, vehicle rental and flight ticket for 2020/2021 at the latest 1st August 2020”.

3. On 5 June 2019, the Claimant put the Respondent in default of payment for the amount of EUR 77,500, granting a 15 days’ deadline to remedy the default. In particular, the Claimant stated that he had only received EUR 52,500 out of the EUR 107,500 that were due to him at the time of default.

4. On 9 August 2019, the Claimant sent a further default letter requesting the payment of EUR 75,000 and granting a 10 days’ deadline to remedy the situation. This time, the Claimant acknowledged the receipt of a payment of EUR 20,000 on 2 July 2019 and of EUR 10,000 on 9 August 2019.

5. On 2 December 2019, the Claimant sent a third default letter requesting outstanding remuneration in the amount of EUR 198,732.25, setting a 10 days’ deadline for the Respondent to fulfil its financial obligations. The Claimant further acknowledged receipt of the following payments from the Respondent:

6. On 13 December 2019, the Claimant unilaterally terminated the contract with the Respondent for breach of contract.

7. On 23 March 2020, the Claimant filed a claim against the Respondent in front of FIFA requesting the total amount of EUR 198,732.75 as outstanding remuneration, plus 5% interest p.a. as from 13 December 2019 until the date of effective payment, as follows: 1) EUR 1,232.75 Remaining salary Payable on 30.03.2019 2) EUR 20,000 Salary Payable on 30.04.2019 3) EUR 20,000 Salary Payable on 30.05.2019 4) EUR 20,000 Salary Payable on 30.06.2019 5) EUR 7,500 Vehicle, rent, flight ticket Payable on 30.06.2019 6) EUR 20,000 Salary Payable on 30.08.2019

7) EUR 50,000 Signing-on fee Payable on 10.09.2019 8) EUR 20,000 Salary Payable on 30.09.2019 9) EUR 20,000 Salary Payable on 30.10.2019 10) EUR 20,000 Salary Payable on 30.11.2019

8. The Respondent, for its part, rejected the claim and requested to dismiss the claim of the Claimant since the termination of the contract is without just cause and finally to decide that the legal and procedural costs shall be borne by the Claimant.

9. The Respondent stated that the Claimant had received EUR 172,500 throughout the contractual relationship and provided translated payment receipts in support. In particular, the Respondent stated that it paid the following amounts to the Claimant:

Amount

Date of payment

EUR 60,000

16.07.2018

EUR 30,000

17.07.2018

TRY 2,000 (=EUR 269.17)

12.09.2018

TRY 1,000 (=EUR 140.25)

27.09.2018

TRY 2,000 (=EUR 327.33)

06.11.2018

TRY 2,500 (=EUR 401.28)

09.11.2018

TRY 2,000 (=331.12)

24.12.2018

EUR 25,000

05.02.2019

TRY 4,875 (=EUR 819.32)

13.02.2019

TRY 4,475 (=EUR 739.66)

22.02.2019

TRY 3,050 (=500.82)

01.03.2019

TRY 45,000 (=EUR 7,340.94)

08.03.2019

EUR 20,000

22.03.2019

TRY 9,600 (=EUR 1,486.06)

11.04.2019

TRY 6,400 (=983.10)

17.04.2019

TRY 3,200 (=EUR 482.65)

29.04.2020

TRY 10,000 (EUR 1,526.71)

31.05.2020

TRY 6,000 (=EUR 952.38)

20.09.2019

TRY 6,000 (=EUR 956.93)

02.10.2019

TRY 6,000 (=EUR 933.12)

23.10.2019

TRY 10,000 (=EUR 1,562.50)

01.11.2019

TRY 5,000 (=EUR 788.64)

19.11.2019

TRY 10,000 (=EUR 1,569.85)

03.12.2109

EUR 20,000

02.07.2019

EUR 10,000

09.08.2019

TRY 20,000 (=EUR 3,134.79)

23.08.2019

TRY 2,500 (=EUR 386.99)

29.08.2019

EUR 1,500

18.09.2019

TRY 3,000 (=EUR 465.83)

19.10.2019

TRY 2,100 (=EUR 329.67)

07.11.2019

TRY 5,000 (=EUR 791.13)

20.11.2019

TRY 6,600 (=EUR 1,042.65)

29.11.2019

TRY 1,000 (=EUR 157.97)

29.11.2019

TRY 3,200 (=EUR 502.35)

03.12.2019

TRY 6,400 (=EUR 1,00)

06.12.2019

TRY 800 (=EUR 123.64)

13.12.2019

EUR 6,000

12.12.2019

10. In addition, the Respondent stated that the Claimant had “signed an “aquittance” in which he declared that he does not have any outstanding receivables to claim to the Respondent. However, the Respondent did not provide a copy of this alleged document.

11. Finally, the Respondent declared that “in recent days there is a financial crisis in Turkey and by reason of that the football clubs cannot pay their debts to their creditors on its due dates. The Respondent wishes to pay its debts towards its creditors including but not limited to the Claimant.” As such, the Respondent requested to be given “reasonable time” to fulfil its obligations towards the Claimant.

12. In response to the Respondent’s reply, the Claimant indicated that the payments allegedly made by the Respondent during the course of 2018 were not made in relation to the contract at the heart of the dispute, but corresponded to sums that were paid in relation to the parties previous contract.

13. Then, out of all payments that the Respondent alleged to have made, the Claimant confirmed having received the following:

 TRY 3,200 on 3 December 2019 (equivalent to EUR 502.35);

 TRY 6,400 on 6 December 2019 (equivalent to EUR 1,000); and

 EUR 6,000 on 12 December 2019.

14. The Claimant did however underline that on 30 December 2019, a further EUR 20,000 had become due and amended his claim, requesting the total amount of EUR 211,230.40 as outstanding remuneration plus 5% interest p.a. as from 31 December 2019.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the Claimant’s claim was lodged on 23 March 2020. Taking into account the wording of art. 21 of the November 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: “the Procedural Rules”), the Chamber concluded that the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules and stated that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (hereinafter: “the Regulations”), the DRC would, in principle, be competent to deal with the matter at stake as the matter concerns an employment-related dispute with an international dimension between a Serbian player and a Turkish club.

3. In continuation, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations, and considering that the player’s claim was lodged on 23 March 2020, the March 2020 edition of the aforementioned regulations is applicable to the matter at hand as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

5. Having said that, the members of the Chamber acknowledged that the parties concluded the contract valid as from 30 January 2019 until 31 May 2021, pursuant to which the Respondent undertook to make payments to the Claimant (cf. point I.2 above) and that the Claimant later put the Respondent in default of payment and consequently terminated the contract with the Respondent for breach of contract.

6. The members of the Chamber highlighted that the underlying issue in this dispute was to determine whether the Claimant had had just cause to terminate the contract on 13 December 2019. The Chamber also underlined that, subsequently, it would be necessary to determine the consequences of the early termination of the contractual relation.

7. The Chamber, first of all, wished to highlight that the Claimant had terminated the contract unilaterally on 13 December 2019 allegedly due to the fact that the Respondent owed him outstanding remuneration in the total amount of EUR 198,732.25.

8. With respect to the Respondent’s allegations that it made payments to the Claimant, the Chamber noted in accordance with art.12 par. 3 of the Procedural Rules that these were not supported by any evidence. In fact, the Chamber noted that the proofs of payments submitted by the Respondent were all dated 2018.

9. Consequently, besides the three payments (i.e. EUR 6,000 + EUR 1,000 + EUR 502.35) acknowledged by the Claimant, the Chamber decided to not take into consideration any of the other payments that the Respondent alleged to have made.

10. In addition, the Chamber acknowledged that despite the Respondent declaring that the Claimant had signed a waiver in which he declared not having any outstanding receivables or claims against the Respondent, the latter failed to provide a copy of this document.

11. Furthermore, the Chamber also noted that the Respondent in its response did acknowledge a debt towards the Claimant, but requested that the Chamber determine that the Claimant did not have just cause to terminate the contract.

12. In this regard, the Chamber highlighted that the Respondent invoked financial hardship as the reason for the accruing of its debt towards the Claimant. In line with its jurisprudence, the Chamber unanimously held that financial hardship cannot be considered as a valid reason to delay or withhold payments that are due and therefore concluded that the Respondent did not put forward any valid reason as to the non-payment of the Claimant’s remunerations.

13. Subsequently, the Chamber turned its attention to the question whether the Claimant had just cause to terminate the contract on 13 December 2019. To do so, the Chamber noted that it would need first to determine the outstanding remunerations at the time of termination of the contract.

14. The Chamber noted that in light of the evidence provided, the outstanding remuneration at the time of contract termination was as follows:

Remaining salary Payable on 30.03.2019 EUR 1,232.75 Salary

Payable on 30.04.2019

EUR 20,000 Salary Payable on 30.05.2019 EUR 20,000 Salary

Payable on 30.06.2019

EUR 20,000 Vehicle, rent, flight ticket Payable on 30.06.2019 EUR 7,500 Salary

Payable on 30.08.2019

EUR 20,000 Signing-on fee Payable on 10.09.2019 EUR 50,000 Salary

Payable on 30.09.2019

EUR 20,000 Salary Payable on 30.10.2019 EUR 20,000 Salary

Payable on 30.11.2019

EUR 20,000 EUR 198,732,75

Received on 03.12.2019

- EUR 502.53 Received on 06.12.2019 - EUR 1,000

Received on 12.12.2019

- EUR 6,000 TOTAL OUTSTANDING EUR 191,230.40

15. In view of the above, the Chamber held that an amount corresponding to more than nine monthly salaries was outstanding as of the date of termination.

16. Furthermore, the Chamber noted that although the Claimant’s final notice did not fulfil the provisions set out in art. 14bis as he only gave 10 days for the Respondent to comply, it cannot be contested that the Claimant had just cause to terminate the contract, and that the Respondent should bear the consequences of the termination.

17. Consequently, the Chamber decided that the Claimant terminated the contract in December 2019 with just cause and he should receive the amount of EUR 191,230 as outstanding remuneration. In addition, the Chamber took note that the Claimant requested the application of an annual interest as of the date of the contract´s termination.

18. In conclusion, the Chamber decided that the Respondent should pay to the Claimant an amount of EUR 191,230 as outstanding remuneration plus 5% interest p.a. as from 13 December 2019 until the date of effective payment.

19. In continuation, the Chamber noted that the Claimant was claiming on top of the aforementioned EUR 191,230, an additional monthly salary of EUR 20,000 that fell due on 31 December 2019.

20. The Chamber pointed out that since the contract´s termination occurred on 13 December 2019, the requested amount of EUR 20,000 should be granted as compensation for breach of contract.

21. In this context, the Chamber underlined that the Claimant did not request any compensation for the early termination of the contract by the Respondent without just cause.

22. Referring to art.17 par. 1.2 i of the Regulations, the Chamber decided that the compensation awarded to the Claimant should be the month of December 2019 i.e. EUR 20,000.

23. In addition, the Chamber noted that the Claimant requested the application of an annual interest of 5% on the amount of EUR 20,000 as from 31 December 2019.

24. In view of all the above, the Chamber decided that the Respondent should pay to the Claimant a compensation for breach of contract amounting to EUR 20,000 plus an interest of 5% p.a. as from 23 March 2020 (i.e. date of claim) in accordance with the standard practice of the DRC.

25. The Chamber concluded its deliberations in the present matter stipulating that the Claimant’s claim is partially accepted.

26. Furthermore, the Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

27. In this regard, the Chamber pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods.

28. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

29. Finally, the Chamber recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Marko Milinkovic, is partially accepted.

2. The Respondent, Eskisehirspor Kulubu, has to pay to the Claimant, the following amount:

- EUR 191,230 as outstanding remuneration plus 5% interest p.a. as from 13 December 2019 until the date of effective payment;

- EUR 20,000 as compensation for breach of contract plus 5% interest p.a. as from 23 March 2020 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.

5. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish.

6. In the event that the amount due, plus interest as established above is not paid by the Respondent within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:

 1.

The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players).

2.

In the event that the payable amount as per in this decision is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Procedural Rules).

CONTACT INFORMATION:

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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777