FIFA - Decisión disputa Cinari 26052023

REF. FPSD-8370

Decision of the Dispute Resolution Chamber passed on 26 May 2023 regarding an employment-related dispute concerning the player Erald Çinari

COMPOSITION:

Frans DE WEGER (The Netherlands), Chairperson Mario FLORES CHEMOR (Mexico), member Roy VERMEER (The Netherlands), member

CLAIMANT/COUNTER-RESPONDENT:

Erald Çinari, Albania Represented by Rodrigues Bastos, Magalhães e Silva, RL

RESPONDENT/COUNTER-CLAIMANT:

Yilport Samsunspor, Türkiye Represented by Anıl Dinçer

INTERVENING PARTY:

FK Shkendija AD, North Macedonia pg. 2

REF. FPSD-8370

I. Facts of the case

1. On 1 July 2021, the Albanian player, Erald Çinari (hereinafter: the Player or the Claimant/Counter-Respondent) and the Turkish club, Yilport Samsunspor (hereinafter: the Club or the Respondent/Counter-Claimant) concluded an employment contract (hereinafter: the contract) valid as from 1 July 2021 until 31 May 2024.

2. According to clause 6 of the contract, the Respondent undertook to pay the Claimant the

following amounts: - 2021/2022 season: • Sing on fee: EUR 75,000 payable on or before 03 August 2021. • Salary: EUR 175,000 payable in 10 instalments as follows: EUR 17,500 on 17 August 2021; EUR 17,500 on 15 September 2021; EUR 17,500 on 15 October 2021; EUR 17,500 on 16 November 2021; EUR 17,500 on 15 December 2021; EUR 17,500 on 18 January 2022;

EUR 17,500 on 15 February 2022; EUR 17,500 on 15 March 2022; EUR 17,500 on 15 April 2022; EUR 17,500 on 17 May 2022. • Monthly allowance (accommodation and transport) of EUR 1,000 from August 2021 to May 2022.

• 2022/2023 season: • Salary: EUR 200,000 payable in 10 instalments: EUR 20,000 on 16 August 2022; EUR 20,000 on 15 September 2022; EUR 20,000 on 18 October 2022; EUR 20,000 on 15 November 2022; EUR 20,000 on 15 December 2022; EUR 20,000 on 17 January 2023; EUR 20,000 on 15 February 2023; EUR 20,000 on 15 March 2023; EUR 20,000 on 18 April 2023; EUR 20,000 on 16 May 2023. • Monthly allowance (accommodation and transport) of EUR 1,000 from August 2022 to May 2023.
• 2023/2024 season: • Salary: EUR 225,000 payable in 10 instalments: pg. 3

REF. FPSD-8370

EUR 22,500 on 15 August 2023; EUR 22,500 on 15 September 2023; EUR 22,500 on 17 October 2023; EUR 22,500 on 15 November 2023; EUR 22,500 on 15 December 2023; EUR 22,500 on 15 January 2024; EUR 22,500 on 15 February 2024; EUR 22,500 on 15 March 2024; EUR 22,500 on 16 April 2024; EUR 22,500 on 15 May 2024.

• Monthly allowance (accommodation and transport) of EUR 1,000 from August 2023 to May 2024. - All amounts mentioned in the contract are net.

3. As per the information retrieved from the Transfer Matching System (TMS), first registration period of the Türkiye Football Federation (TFF) for the season 2022/2023 started on 17 June 2022 and ended on 8 September 2022.

4. On 27 September 2022, the Player sent the following letter to the Club: “(…) the club as decided to not register me for the 2022/2023 season. As if that was not enough, the club put me to train apart from the first team, on a different schedule, sometimes with no doctors, no physiotherapist, no complete staff. Conditions that are obstacles to a player’s career development. Furthermore, on August, 2022, the club accessed my room and emptied it without my permission, and without prior notice, alleging that the facilities were full, as well as the first team. This conduct is a massive disrespect and a violation of my privacy, and cannot be tolerated.

Nor can I forget that the club has not been complying with the financial obligations assumed contractually. As you are certainly aware, currently, I do not have my salaries regularized. On top of all this, a member of the club’s board addressed to me with unjustified disrespect and aggressiveness that made me feel uncomfortable, mistreated and misplaced. I have been tried to bear this whole situation patiently, always with utmost professionalism, without ever failing to fulfil my obligations towards the club. But unfortunately, it got to a point where it affected my professional, personal, and family life. For all the above, I want to invite the club, within the next 15 (fifteen) days, to find a friendly solution for the situation I am living, a good solution for both parties. pg. 4

REF. FPSD-8370

Otherwise, I have no other option than resorting to the FIFA Dispute Resolution Chamber, as

a contractually defined competent court to settle any dispute arising from the employment contract I entered with the club.”

5. On 4 October 2022, the Club replied the Player indicating that: - The Player was not registered as the TFF changed its rules and regulations. However, the Club manifested that it wishes to maintain the contractual relationship. - The Club is planning to pay the overdue to the Player and it will maintain all financial and sporting conditions same as the First team’s other players. - The Club indicated that the Player will be taken back to train with the First team.

6. On 5 October 2022, the Club provided the Player with a document called “Declaration and Acceptance letter”, in which the Player would accept to be non-registered. The Club argued that it indicated the Player to disregard this document.

7. On 13 October 2022, the Player filed a claim (FPSD-7855) against the Club in front of FIFA requesting to FIFA, inter alia, to terminate the Player’s contract. The Claim was not completed within the provided deadline in accordance with art. 18 of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules) and the Player’s petition was deemed to have been withdrawn and file was closed.

8. On 10 November 2022, the Player sent a letter to the Club, indicating that: - As per his letter dated 27 September 2022, the Club is in clear breach of the contract which entitles the Player to unilaterally terminate the contract in accordance with art 14 of the Regulations on the Status and Transfer of Players (RSTP). - The Player invited the Club to negotiate “the Player’s career” within the next 10 day.

The Player is only willing to accept one of two situations: “An agreement between the Player and the Club which provides that in the event of delay in the payment of an instalment on its due date, the remaining instalments due until the end of the relevant season are automatically due (Acceleration Clause) AND if the Club

fails to register the Player in the next registration period, i.e., Winter Transfer Window, or, after registering him if the Club deregisters the Player until the end of the Employment Contract, causes the Player’s contract to be automatically terminated by mutual agreement and will give rise to the payment of the residual value of the Employment Contract. OR, Mutual termination of the Employment Contract with entire payment of the residual value of the Employment Contract”.

9. On 14 November 2022, the Club replied to the Player the following: pg. 5

REF. FPSD-8370 - The Club intended to register the Player, however the TFF regulations changed close to the end of the transfer season. - The Club plans to register the Player for the season 2022/2023. - The Player has attended to all personal training and did not complain. - From 27 September 2022 until 10 November 2022, the Club has not received any correspondence from the Player. In particular, the Club added that the: “deregistration is not our Club's preference, and it is just about the necessity regarding the Turkish Football Federation's regulation which was lately sent to the Clubs. Apart from that, our Club has always communicated with you during this period of deregistration and you explicitly accepted (directly and indirectly) to do personal training and never complaint about this as from 27.09.2022 until today”. - The Club will contact the Player to discuss the current and future situation of the Player. - The Club requested the Player to continue with the training with the first team.

10. On 16 November 2022, the Player replied to the Club the following: - The de-registration of the Player is the sole and exclusive responsibility of the Club. - “The Player, as the professional he is, kept attending to the training sessions, because he has always respected his Contract with the Club, something that the Club did not. That is not equivalent to accept his situation, he simply respected his Contract while his legal

team is taking care of legal issues”. - The reason that no correspondence was sent as from 27 September 2022 to 10 November 2022, was due that during the same period, the Player lodged a Claim in FIFA, under case number FPSD-7855. - the Player further added that he “cannot agree on the terms proposed for the meeting: the proposed date for the meeting, i.e., 24.11.2022, exceeds the 10-day period granted by the Player for the amicable resolution of the dispute. Another issue is related to the unnecessary and logistical difficulty of traveling to Samsun for a meeting that, in essence on our part, will be brief, because as we already stated in this letter, and in the letter dated 10.11.2022 we remain irreducible in our position”.

11. On 17 November 2022, the Player requested the TFF to provide with the information that the Player was not registered for the 2022/2023 season.

12. On 18 November 2022, the Club replied to the Player’s correspondence dated 16

November 2022 and indicated, inter alia, that a videoconference would be held on 21 November 2022.

13. On the same date, 18 November 2022, the Player replied the Club stating that the Club tried to discredit his allegations but that nonetheless he would participate in the videoconference. pg. 6

REF. FPSD-8370

14. On 21 November 2022, the Player sent a proposal after the videoconference with the Club, granting a deadline until 23 November 2022 for the Club to reply.

15. On 22 November 2022, the Club sent a counterproposal to the Player. The Club proposed the Player, inter alia: to waive his salary by EUR 10,000 and “(…) our club will give Mr. Cinari a guarantee to be registered to the Turkish Football Federation on or before 30 July 2023 (…)”

16. On the same date, 22 November 2022, the Player stated that the only proposal he would accept is proposal he sent the Club and the deadline to accept is until 23 November 2022.

17. On 24 November 2022, the Player notified the Club the termination of the contract to under art. 14 RSTP alleging that the Club breached the contract as he trained separately, the treatment of some members of the Club towards the Player, delays of the salary payment and the non-registration of the Player.

18. On 25 November 2022, the Club sent the Player a “warning letter” in which the Club stated, inter alia, that: - The Club and the Player were trying to find an amicable solution for both parties.

However, the Player have “suddenly and unreasonably decided to spot the negotiation with the latest correspondence”. - “Although there was impossibility to complete your registration for the first half of the 2022/23 football season, you were doing training with the first team for a long time without having any complaint. [The Club] has been told by your manager and coaches that you were doing training with the first team yesterday as well, just few hours before your termination” - “Consequently, [the Club] is warning you for a last time and hereby giving you last chance to find amicable solution for all of us. For this reason, you are invited to immediately withdraw your recent action and contact with [the Club]'s representatives on or before 27.11.2022. Otherwise, [the Club] will immediately initiate all necessary legal actions and open legal case against you before FIFA Dispute Resolution Chamber (FIFA DRC) for the unilateral termination of the contract without just cause. [the Club] will also request compensation for the early termination and sporting sanction imposing on you”.

19. On 18 January 2023, the Player signed an employment contract with the North Macedonian

club, FK Shkendija AD (hereinafter: the new club), valid as from the date of signature until 14 June 2024, including a monthly salary of EUR 500 net.

II. Proceedings before FIFA

20. On 27 November 2022, the Player filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the Player pg. 7

REF. FPSD-8370

21. The Player lodged a claim against the Club for breach of contract.

22. According to the Player he terminated the contract with just cause in accordance with art. 14 RSTP as “(i) is/was not able to compete due to the non-registration he suffered from the Clubʼs decision; (ii) he was not fully integrated in the first team (iii) he trained apart from the first team for the 22/23 season, (iv) he has not received a proper training routine for a professional player, (v) as well as he not always dully received his salaries and had overdue payables to receive from the Club”.

23. The Player detailed that “from 13 October 2022 to 15 November 2022, the Player did not discuss any issue with the Club because, during that time, the Player lodged the aforementioned Claim under case number FPSD-7855, of which FIFA DRC is aware”.

24. The Player requested the following relief: “1. The Dispute Resolution Chamber has jurisdiction to hear and determine this dispute.

2. The Respondent did not registered the Player for the 2022/2023 season, because it already used up its entire quota of foreign players and wanted to register another foreign players, as in fact it did.

4. The Claimant has a legit just cause to terminate the Contract with the Club based on his non-registration and Club’s treatment, pursuant to Article 14 of the RSTP.

5. The Respondent shall pay the Player the amount of 382.000,00 EUR as compensation for

the breach of the Contract.

6. The Respondent shall be imposed a ban from registering new players for two entire and consecutive registration periods, pursuant to Article 17, point 4 of FIFA RSTP.

7. Order the Respondent to pay all legal costs, levies and expenses anyhow related to this procedure”.

25. On 13 January 2023, the Player added information to his claim, and provided evidence that on 7 January 2023, that a non-Turkish player, Arvydas Novikvoas, terminated the contract with the Respondent.

b. Position of the Club and counterclaim

26. The Club filed a counterclaim for breach of contract.

27. The Club argued that: - The Club could not complete the Player’s registration in TFF due to wrong explanations from the TFF to Turkish clubs and its decision to not change the rules and regulations especially about the foreign limit. pg. 8

REF. FPSD-8370 - The Club has promptly communicated and informed the Player about this situation and allowed him to find another club and negotiate, in accordance with the Club, said information was communicated to the Player in August 2022. - “The Player has explicitly and tacitly accepted this situation as waiving his legal rights and closing the FIFA legal case and not raising any more complaint more than two months”. - The Claimant has never sent any letter and warned to the Club about the poor conditions during the personal and/or first team trainings as mentioned in his claim. - The Respondent has always paid the Player’s salaries on the same date with other first team players. - The Player’s correspondences have been promptly replied by the Club. - The Player was training on the same conditions than other Club’s players of the first team. - The Club acted in good faith in the negotiation process to find amicable solution and added that “despite the club’s good faith to warn the Claimant about the possible outcomes of the unilateral termination without just cause and given him opportunity to continue negotiation process and find amicable solution, the Claimant has rejected all

these warnings”. - With regards to the evidence provided by the Player referring to WhatsApp communications, the Club argued that it might be fake and can be easily prepared. - The Player “has been aware to be deregistered and waited more than three months to raise complaint close to the beginning of 2022/23 winter transfer season to be benefitted from this problem and receive more from the Respondent Club with his excessive requests. Therefore, the Claimant shall not be deemed as acting in good faith”.

28. The Club concluded that it has successfully provided to the Player all essential requirements, however, the Player has “abused the Respondent Club’s goodwill and tried to be benefited more with the way of the unilaterally terminating his employment agreement”. The Club considered that the contract’s termination was unjust and was a clear result of the substantial breach of the Claimant. To support these assertions, the Club provided various pictures and videos of the Player participating with the Club.

29. The Club requested the following relief: “- To reject all claims of the Claimant stated in his application to your Court on 27.10.2022 and dismiss his application dated 27.10.2022. - In case of acceptance the claims of the Claimant, to deduct all remuneration in the Claimant’s new employment agreement from total compensation amount if it is decided.

Counterclaim

1. To accept the claims (counterclaims) of the Club Samsunspor.

2. To condemn the Claimant that the Employment Agreement was unilaterally terminated by the Claimant without just cause and the Claimant has seriously breached the Contract. 3. to condemn the Claimant to pay in favor of the Respondent/Counterclaimant Net 382.000

EUR (remaining part of the remuneration), as compensation for the breach of contract along pg. 9 REF. FPSD-8370 with its interest of 5 % p.a. starting from the date of the present claim, in accordance with

article 17 para. 1 of te Regulations on the Status and Transfer of Players and FIFA’s commentary on the Regulations. 4. to impose a sporting sanction between 4-6 months against the Claimant for breach of the Employment Agreement as unilaterally terminating the Contract without just cause, in accordance with the Article 17 para. 3 of the Regulations on the Status and Transfer of Players. 5. to establish that the costs of the present arbitration procedure shall be borne by the Respondent”. c. Reply of the Player to the counterclaim

30. The Player’s argument remained unchanged and he requested FIFA to reject the counterclaim.

31. As to the allegation that the Player did not complain about the situation, he indicated that this is not accurate, as he informed the former club Respondent’s Counsellor of Administrative Board and Director of Development (Mr. Batu Kaplan) about the situation the Player was facing.

32. The Player additionally argued that he was thrown from his accommodation facilities without prior knowledge.

33. What is more, the Player contested the Club’s allegation that he was informed about the non-registration, considering that the summer registration window in Türkiye closed on 8

September 2022, and it did no elapse 2 months.

34. The Player also considered that he has just cause to terminate the contract and that the Club’s position shall be disregarded taking into account that : “(1) being deprived of competition and kept facing a damaging paralysation in his career, (ii) was not fully integrated in the first team trainings, was deprived of his room at [the Club]’s facilities without his prior knowledge and/or consent, and his access to complete coaching staff and medical staff was reduced, (iii) was not treated has a part of the Respondent’s first team plans and was not properly treated by the Club, (iv) had no guarantees, because [the Club] did not want to give those guarantees despite [the Club]’s request, that he would be able to compete in the rest of

the 22/23 season, and (v) [the Club] wanted and tried to make the Claim waive to half of his salary, in any case”.

35. As to the pictures and videos brought forward by the Club, the Player argued that it does “not provide a substantial evidence that the Claimant was fully integrated into first-team trainings, because: (i) the dates in the photographs’ captions are unverified and are not accompanied of any serious indication that such photographs were taken on those respective dates; (ii) in the absence of such proof of dates, it is not possible to confirm that such photos were actually captured on such dates, and may be, nothing more, nothing less, than pg. 10

REF. FPSD-8370 photographs of one or two prior training sessions with different dates in the caption, but (iii) even if such photographs were accompanied by reliable dates, that would not be enough to prove that the Claimant was completely integrated into the first team’s training sessions, performing the same training plan as the other colleagues, without any differentiated treatment, as alleged by the Respondent, who had the burden to proof such allegation and failed to do so”.

36. As to the negotiation process, the Player considered that the Club “did not act in good faith, did not want to commit with the Claimant, did not have any interest in the Claimant’s services, and tried to make the Claimant wave to 50% of his salary, in any case scenario, forcing the Claimant to change the terms of his Contract, and possibly, forcing it to terminate the Contract in order for the Player to recover his career”.

37. Alternatively, and in case FIFA states that the contract was not terminated with just cause, the Player stated that (a) the amount claimed by the Club shall be deducted, by EUR 17,000 related to the housing allowance (b) the Club failed to prove the damages suffered and (c) FIFA should take into account equity and economic reasonableness.

d. Final comments of the Club

38. As to allegations that the Player complained against Mr Batu Kaplam, the Club challenged the evidence provided by the Player. Additionally, it mentioned that the Club is not responsible and obliged to give any accommodation to its players.

39. As to the deregistration of the Player, the Club indicated that it did not intentionally deregister the Claimant and the issue of deregistration was caused by the TFF’s explanations, behaviours and actions.

40. The Club argued that the contract was terminated by the Player 2.5 months after the deregistration. Thus, the Player has clearly accepted to be deregister considering he has not taken any legal action against the Club and preferred to maintain contractual relationship with the Club.

41. The Club has further provided additional videos of the Player training with the Club between 04 October 2022 until 24 November 2022, which led to conclude to the Club that the Player’s actions, behaviours and reactions on the videos and photographs truly reflect the satisfaction and happiness of the Player.

42. As to the payments, the Club stated that it paid the Player at the same time than the other players and provided a copy of the corresponding bank receipts.

43. As to the request for compensation for breach of contract, the Club amended it to EUR 785,000. pg. 11

REF. FPSD-8370

44. Lastly, as to the mitigation of the damages of the Player, if awarded, the Club indicated that the amount of EUR 17,000 related to accommodation shall awarded as the Player is no longer in Türkiye and the amount shall also be deducted by the Player’s new salary.

e. Position of the Intervening party

45. In accordance with the new club, the Player terminated the contract with just cause, as the Club explicitly confirmed that it deregistered the Player along with its overall abusive behaviour towards him. Moreover, the new club argued that it did not induce the Player to breach his contract, since the new club registered the Player 3 months after the

termination.

46. The Club requested to reject “all reliefs sought by Counter-Claimant in this case, and in any event, to reject groundless requests by the Counter-Claimant that the Club is to be jointly and severally liable to pay any compensation to the Counter-Claimant and the groundless requests for the sporting sanctions to be imposed on the Club”.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

47. 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 present matter was presented to FIFA on 27 November 2022 and submitted for decision on 26 May 2023. Taking into account the wording of art. 34 of the March 2023 edition of the Procedural Rules, the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

48. Subsequently, the Chamber referred to art. 2 par. 1 of the Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (May 2023 edition), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from Albania and a club from Türkiye, with the involvement of a club from North-Macedonia.

49. Subsequently, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the RSTP (May 2023 edition), and considering that the present claim was lodged on 27 November 2022, the October 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof pg. 12

REF. FPSD-8370

50. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties, including without limitation the evidence generated by or within the TMS.

c. Merits of the dispute

51. Its competence and the applicable regulations having been established, the Chamber entered into the merits of the dispute. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. 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.

1. Main legal discussion and considerations

52. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that the parties strongly dispute the termination of the contract and its consequences.

53. In brief, while the Player considered that he had just cause to terminate the contract considering that (a) the Player was not registered; (b) he was not fully integrated in the first team; (c) he trained apart from the first team for the 2022/23 season; (d) he has not been instructed with a proper training routine for a professional player and (e) the salaries were not paid on the due dates. The Club, for its part, considered that the termination was without just cause considering (a) the non-registration was not intentional as the TFF provided different messages regarding the registration of foreign players; (b) the Player has explicitly and tacitly accepted this situation as he waived his legal rights and closed the

first proceedings lodged with FIFA without raising any additional complaint for more than two months; and (c) the Player was paid, and he did train with the principal team.

54. From the arguments of the parties as well as the documentation on file and TMS, the Chamber was able to establish that: - The first registration period in Türkiye for the 2022/2023 season ended on 8

September 2022. - The Player was not registered for the 2022/2023 season. - On 27 September 2022 the Player sent a letter to the Club complaining about his situation, in which he mentioned, inter alia, that he was not registered for the 2022/2023 season and he was training in separate. - On 4 October 2022, the Club replied to the Player explaining the reasons why the Player was not registered and that he could train with the first team. pg. 13 REF. FPSD-8370 - On 14 October 2022, the Player filed a claim in front of FIFA, however, the claim was withdrawn since not properly completed, and the file was closed. - Between 10 November 2022 until 23 November 2022 the parties were in communication in order to solve this situation. - The counterproposal of the Club dated 22 November 2022 mentioned, inter alia, that the Club could guarantee the Player to be registered on or before 30 July 2023. - On 24 November 2022, the Player terminated the contract.

55. In this context, the Chamber first reminded the parties that, in line with the jurisprudence of the Chamber, the registration procedure is the sole responsibility of a club and upon which a player has in general no influence. As the Club is supposedly interested in acquiring the rights of the Player and in benefiting from his services, it is also expected that it acts accordingly and executes the administrative formalities in view of obtaining, for instance, the registration with the engaging federation. Consequently, the Chamber confirmed that it is the obligation of the Club to ensure that all administrative formalities are met for the

Player to be able to play, as per the contract.

56. The Chamber further wished to remind that in accordance with the jurisprudence of the Chamber and as mentioned in page 114 of the Commentary of the RSTP, “a club – as an employer – has the duty to protect the personality rights of the player – as an employee. The career development of a footballer may be prejudiced as a result of inactivity and thus, the club has a duty to allow its players to engage in the activity fo