FIFA - Decisión disputa Dudziak 31082023

REF. FPSD-10441

Decision of the Dispute Resolution Chamber passed on 31 August 2023 regarding an employment-related dispute concerning the player Jeremy Calvin Dudziak

COMPOSITION: Lívia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman Stijn BOEYKENS (Belgium), member Calum BEATTIE (Scotland), member

CLAIMANT:

Jeremy Calvin Dudziak, Germany Represented by Sami Dinç

RESPONDENT:

Hatayspor Kulübü Derneği, Türkiye Represented by Ismail Coskun pg. 2

REF. FPSD-10441

I. Facts of the case

1. On 26 January 2023, the German player, Jeremy Calvin Dudziak (hereinafter: the player or the Claimant) and the Turkish club, Hatayspor (hereinafter: the club or the Respondent) concluded an employment contract (hereinafter: contract) valid as from the date of signature until 31 May 2023, with an option to further extend the contract.

2. Clauses 3.1.A and 3.1.B of the contract read as follows: “Payment and special provisions Net Monthly Fee (not less MINIMUM WAGE (THE FEES BELOW INCLUDE THE MONTLY than minimum wage) MINIMUN WAGE)

1. FOR THE 2022/2023 SEASON:

A. In total, a net warranty fee of 120.000 EUR (One hundred Twenty Thousand Euros) will be paid to the Player in the following terms: 31.02.2023 24.000 EUR 28.02.2023 24.000 EUR 31.03.2023 24.000 EUR 30.04.2023 24.000 EUR 31.05.2023 24.000 EUR

B. There will not be an additional per match payment to the player.

[…]”

3. Clause 3, section “Fringe benefits” lit. A of the contract reads as follows: “The Club will pay the Player a total of EUR 4.000 (Four Thousand Euros) net house and car rent. All utility costs of the house and oar (electricity, telephone, water, traffic fines, petrol, etc.) will be paid by the Player.”

4. Clause 3.30, section “special provisions” of the contract reads as follows: “lf the competitions are suspended or postponed by an authorized body such as the government of the Republic of Turkey. FIFA, UEFA or TFF), only the minimum wage will be paid to the player during the postponement / suspension period. ln such a case, the contract will automatically extend until the end of the competitions within the scope of TFF instructions. lf the matches are completed after the postponement / suspension period, the Club will pay the monthly fees to the Player. The Player acknowledges and undertakes that the failure of the club to make the balance payments for this interrupted pg. 3

REF. FPSD-10441 period cannot be used by him as a justified termination reason. The club reserves the right to make a reduction in fees within the scope or damages incurred due to postponement / suspension due to postponement / suspension. ln such a case. the parties will agree on the discount amount / rate. if the parties fail to reach an agreement, the Club, it will decide unilaterally about the discount provided that it is objective, measured and fair. ln the event of the cancellation of the league. the fees will be paid on a pro rata basis taking into account the matches actually played.”

5. On 6 February 2023 an earthquake occurred in Türkiye. Hatay, the city where the club is located, was one of the cities affected by it.

6. According to the statement of the Turkish Football Federation (TFF) on 7 February 2023, all professional and amateur matches were suspended until 17-20 February 2023.

7. On 12 February 2023, the TFF announced the following (quoted verbatim): “[…] Due to the earthquake disaster that took place on 06.02.2023 in our country, clubs which have headquarters in 10 state of emergency declared provinces which were affected by the earthquake namely Kahramanmaraş, Gaziantep, Malatya, Diyarbakir, Kilis, Şanhurfa, Ad1yaman, Hatay, Smaniye, Adana has requested to be withdrawn from the relevant proffessional leagues.

It has been decided that; Such requests have been accepted. These clubs shall be deemed forfeited (3-0) in the remaining competitions and the opponent teams shall be deemed as winner (3-0) in the 2022-2023 football season as of 06.02.2023. These clubs shall continue their sports activities in the 2023-2024 football season in the leagues they are in the 2022-2023 season. To pay the guarantee receivables arising before TFF for the rest of the season to the withdrawn teams in all professional leagues.”

8. In accordance with the information retrieved from the Transfer Matching System (TMS), on 14 February 2023 (TMS ID 651627/651643), the Respondent and the Hungarian club, Ferencvárosi Torna Club concluded a loan agreement for the temporary transfer of the player, Mehdi Boudjemaa. The transfer fee of that agreement in favour to the club was EUR 95,000 net.

9. On 18 February 2023, FIFA announced the following (quoted verbatim): pg. 4

REF. FPSD-10441 “In light of the exceptional situation caused by the natural disaster affecting Türkiye, the Bureau of the FIFA Council has decided to further extend the registration period of the Turkish Football Association (TFF) until 5 March 2023, and to grant further exceptions to support the players and clubs most affected.

The decision follows an initial extension granted by the Bureau of the FIFA Council, which was in place until 18 February. Last week, the TFF informed FIFA that the recommencement of its competitions had been further postponed to a date between 3 and 5 March. FIFA was also informed that four affiliated clubs, Gaziantep FK, Hatayspor, Yeni Malatyaspor and Adanaspor, had withdrawn from the current championship because their facilities were severely damaged and could no longer be used for sporting activities. Consequently, the decision adopted by the Bureau of the FIFA Council grants a further extension of the registration period of the TFF until 5 March 2023. It further allows players who were registered with one of the above-mentioned clubs at the time of the natural disaster to register with a maximum of four clubs and to play official matches for three clubs during the current season. Those players are also allowed to play official matches for more than two clubs participating in the same national championship or cup during this season. They can also be registered outside a registration period by any association internationally, provided that such registration occurs before or on 5 March 2023, and provided that due consideration is given to sporting integrity in each case. FIFA will continue to collaborate with the TFF, while monitoring the situation and deciding on any further regulatory amendments in these tragic circumstances.”

10. In accordance with the information retrieved from the TMS, in July 2023 after the earthquake occurred in Türkiye, various players were transferred to the club, however, most of them were from players under a status “out of contract”, return on loan or only with sell-on fee payments.

II. Proceedings before FIFA

11. On 4 June 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the Claimant

12. In his claim, the Claimant requested that the Respondent be ordered to pay to him overdue payables in the amount of EUR 124,000 net corresponding to salaries from January to May

(EUR 120,000) and the housing and car allowance (EUR 4,000). pg. 5

REF. FPSD-10441

13. The Claimant further asked to be awarded interest of 5% as from the due dates and that the Respondent be ordered to pay judicial costs and “attorneyship fees”.

b. Position of the Respondent

14. In its reply, the Respondent requested FIFA to dismiss the claim stating that on 6 February 2023 an earthquake occurred in Türkiye, which was a force majeure situation.

15. The Respondent stressed that since the beginning of the contract until the earthquake on 6 February 2023, the club only played 3 matches and the player participated in 2 of the 3 matches and played in the first 11 in the match of 5 February 2023. The Respondent further stressed that due to the earthquake “10 cities in Turkey including the city where the club is located, were destroyed, thousands of people pass away their lives, hundreds of thousands of buildings were destroyed and there were no hospitals, municipal buildings, public buildings or any buildings that could serve the public in our city […] The main reason for this situation is that it is impossible for the earthquake-affected cities, especially our city Hatay, to return to normal in an ordinary life”.

16. Moreover, according to the Respondent, the earthquake had the following negative effects on the club: “1. One of our football players Christian Atsu Twasam, some of our youth players and their families, many club staff and their families pass away their lives.

2. Apart from those who pass away our club, unfortunately our Sporting Director Taner

Savut,

3. There is not a single person in our city Hatay who has not passed away a family member/friend.

4. Many club employees also left our club due to the earthquake”.

17. As a consequence of the earthquake, the TFF “declared a "white season" for the Clubs

operating in the earthquake zone and the relevant Clubs have been exempted from all their obligations in the 2022/2023 season. On the other hand, these Clubs will continue to play in the 2023/2024 season in the same league they played in the 2022/2023” and FIFA extended the transfer periods in Türkiye twice.

18. The Respondent also referred to the FIFA announcement of 18 February 2023, which stated that the “earthquake was a natural disaster and that it is an exceptional case”, in other words, force majeure.

19. Additionally, the Respondent stressed that it did everything in its power to support all players, mutual terminations were made with players who wanted to terminate their contracts and various meetings were held with its players. During this period, according to the Respondent: pg. 6

REF. FPSD-10441 “The Claimant did not make any request to the Hatayspor. If the Player had a request for a temporary or permanent transfer to another club or to mutually terminate his contract, the Client club would assist the Claimant as well as other Players. Moreover [the club] would like to point out that there is no evidence in the player's petition showing that he intends to transfer to another club or terminate his contract. During this period. the Player did not fulfil his obligations under the contract. In the contract between the parties, it is clearly stated in Article 30 under the heading "Special Provisions" that in case of suspension of the leagues, payment will be made on a pro rata basis […]”

20. The Respondent provided screenshots of newspaper reports showing pictures of the damage caused in Hatay and of the FIFA announcement.

21. The Respondent requested the following relief: “Dismiss the case on the grounds that the player's claims cannot be accepted in accordance with the contract signed between the parties, Provided that it does not mean acceptance, if the case will not be dismissed payment of the 6-day fee for February to the Player,

Provided that it does not mean acceptance, if you decide to the contrary of the above situations, we request a decision to make an equitable reduction.” c. Rejoinder of the Claimant

22. In his rejoinder, the Claimant requested FIFA to reject the objections presented by the Respondent on the following basis: - The earthquake did not have a negative financial impact on the Respondent. - The TFF announced that professional leagues were suspended for a limited time period (15-20 days) and that following the suspension the professional leagues were reinitiated. - According to the TFF announcement, the clubs requested to be withdrawn and it was not a decision of the TFF. - Iskenderunspor AS which is also located in Hatay, continued to play in the season 2022/2023 season and other clubs such as Amed Sportif Kulübü, Adana Demirspor and Şanliurfaspor, clubs that were affected by the earthquake, decided not to withdraw from the league. Consequently, the withdrawal from the league by the Respondent was its own decision and not of the TFF. The Respondent provided evidence on this matter. pg. 7

REF. FPSD-10441 - The Claimant contested that the Respondent provided support to all players; the player stated that he did not receive any payment before the earthquake and was abandoned by the club after the earthquake. - After the club’s decision to withdraw from the competition, “the Claimant did not find a club to transfer and also the Respondent did nothing about the possible transfer of the Claimant to another football club. The responsibility is not belonging to the Claimant to find a new club within this limited period. If the Respondent would have asked the Claimant to continue to serve his professional services after the happening of the earthquake, the Claimant was ready to serve. But the Respondent had preferred not to provide this opportunity to the Claimant by withdrawal from the league its own request. In this context, the Respondent has to pay the due and outstanding debts towards the

Claimant.” - The Respondent did not contact the Claimant until the date of submission. - The withdrawal of the Respondent “did not cause any negative financial and sporting effects for the Respondent. Because, according to the league table of TFF Super League as of the date of the withdrawal of the Respondent, the Respondent was only one point ahead of the relegation zone”. Moreover, the TFF declared that clubs that decided to withdraw shall continue to play in the same league, therefore, the Respondent guaranteed not to be relegated. - Additionally, the TFF decided to pay the guaranteed receivables arising from the TFF to the withdrawn clubs in all professional leagues for the remaining part of the season. - As to clause 30 of the special provisions of the contract, it could not be applied and could not justify any deduction, considering that, inter alia: (i) the suspension was only for 20 days and then the championship continued; (ii) the club decided to withdraw from the championship; (iii) the club never contacted the player; and (iv) the club did not show that it suffered damages. - Finally, the Club concluded 13 transfer of players 4 months after the earthquake; the player provided as evidence a copy of the website “transfermarkt” with a summary of the Respondent’s transfer.

23. The Claimant requested the following relief: - To dismiss the allegations of the Respondent. - That the Respondent be ordered to pay EUR 124,000 net plus 5 % interest p.a. as from the due dates until the date of effective payment. pg. 8

REF. FPSD-10441 - That the Respondent be ordered to pay judicial costs and legal fees. d. Final comments of the Respondent

24. In its final comments the Respondent stated the following: - The decision of the club to withdraw from the Turkish league was made by the authorities set up in the contract following a meeting held by the TFF board of directors. - With regard to other clubs that continued in their respective leagues, the Respondent

argued that the force majeure needs to be analysed in the specific situation of the Respondent which is not comparable to other clubs. Moreover, the city of Hatay, according to the Presidency of Strategy and Budget Directorate source, was the most affected city. As to the club Iskenderunspor, this club was in 3rd division and did not have any foreign players, which was not the case of the Respondent, with 14 foreign players who did not wish to stay in the country. - With regards to the application of clause 3.30 (section: special provisions) of the contract, and although said clause referred to postponement/cancellation of the league, it is the Respondent’s view that it would be fair to apply said clause as the official league’s competitions could not be played due to a force majeure. - The Respondent wished to point out that the earthquake was a force majeure situation for the following reasons: - “One of the most devastating earthquakes in the 100-year history of the Republic of Turkey did not occur, - Thousands of people did not lose their lives, were not injured, did not lose their relatives, and their homes and workplaces were not destroyed, - There has never been a period of months in which the simplest - basic human needs could not be met, - Christian Atsu, one of the foreign players of this club, and Taner Savut, the Sporting Director, did not pass away, - Three young players playing in the sub-structure and the families of club personnel did not lose their lives, - The club's facilities were not rendered unusable and tent cities for homeless people were not set up on the club premises”. pg. 9 REF. FPSD-10441 - Equally, the Respondent further stated that the earthquake was a force majeure situation, in line with Swiss law and the Court of Arbitration for Sport (CAS) jurisprudence, as it was a catastrophe completely unforeseeable: “In the earthquake,

10 big provinces in the country were affected, it is not possible for the club to know that such a disaster would occur. The effects of this earthquake are still continuing. For example, there are still water, electricity and housing problems in Hatay. Although 6 months have passed, an earthquake big enough to prevent life from returning to normal should definitely be considered a force majeure.” - Moreover, FIFA in its announcement dated 18 February 2023, accepted that this situation was a natural disaster. - With regard to the transfers of players, the club stated that it needed to perform them, as a large number of players left the club; however, most of the players were transferred free of payment, and /or with the support of sponsors. - Finally, the Respondent stated that the Claimant did not fulfil its obligations under the contract: - The player only fulfilled his obligations for 10 days. - The player decided not to play and waited until the end of the contract to claim all his salaries. The player did not send any warning or default notice to the club. - The fees agreed in the contract were to be paid in return for the player’s participation. - The player did not fulfil his obligations due to the earthquake. - The Respondent did everything it could to support all players, such as proposing mutual terminations or alternative solutions. - The TFF declared a “white season” for the clubs operating in the earthquake zone and these clubs have been exempted from all their obligations in 2022/2023 season. - The player did not contact the club to find a solution. - There is no evidence that the player intended to transfer to another club.

25. The request for relief of the Respondent remained unchanged.

III. Considerations of the Dispute Resolution Chamber pg. 10

REF. FPSD-10441

a. Competence and applicable legal framework

26. 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 4 June 2023 and submitted for decision on 31 August 2023. Taking into account the wording of art. 34 of the March 2023 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

27. Subsequently, the members of 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 par. 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 German player and a Turkish club.

28. Moreover, 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 Regulations on the Status and Transfer of Players (May 2023 edition) and considering that the present claim was lodged on 4 June 2023, the May 2023 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

29. 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

30. 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. pg. 11

REF. FPSD-10441

1. Main legal discussion and considerations

31. 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 lawfulness of the non-payment of the financial obligations under the contract, i.e., the total value of the contract.

32. In this context, the Chamber noted that neither party contested the non-payment of the amounts claimed by the Claimant. Therefore, it acknowledged that its task was to determine, based on the arguments presented by the parties, whether the Respondent had a valid justification for not having complied with its financial obligations.

33. In view of the above, the Chamber took note of the Respondent’s argumentation that the salaries owed to the Claimant remained unpaid due to the fact that at the beginning of the contract an earthquake stroke Türkiye, in particular the city where the club is located, and this situation corresponded to a force majeure, justifying its default. The Respondent further requested the application of clause 3.30 (section: special provisions) of the contract.

On the other hand, the Claimant requested FIFA to reject the argumentation of the Respondent and order the latter to pay his overdue remuneration.

34. Having carefully analysed the case file, the Chamber observed the following undisputed facts: - The parties signed a contract for 4 months starting on 26 January 2023 and ending on 31 May 2023; the total salary to be paid for this period amounted to EUR 120,000

net and a housing allowance of EUR 4,000. - On 6 February 2023, an earthquake occurred in Türkiye, and Hatay was one of the most affected cities. - FIFA decided to extend the registration period in Türkiye until 5 March 2023. - The TFF announced that all professional and amateur matches were suspended until 17-20 February 2023. - On 12 February 2023, the TFF announced that the Respondent made use of the possibility to withdraw from the competitions for the 2022/2023 season. However, as per the TFF decision, the club would return the next season (2023/2024) to the same competition league as it was prior to the withdrawal and the TFF would pay the receivables arising before the TFF for the rest of the season. - FIFA in its announcement on 18 February 2023 “was informed that HATAYSPOR, Yeni Malatyaspor and Adanaspor had withdrawn from the current championship because their facilities were severaly damage and could no longer be used for sporting activities”. pg. 12 REF. FPSD-10441 - There is no evidence that since the earthquake the parties had any type of direct communication.

35. In this context, the Chamber stated that prior the earthquake of 6 February 2023, the contract was executed by both parties and therefore the player shall be entitled to his salary corresponding to this period. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant EUR 10,912 as pro rata salary due prior to the earthquake (i.e., EUR 124,000 /125 days times 11).

36. In continuation, the Chamber turned its attention to the remaining contract period, i.e., after the earthquake on 6 February 2023, and acknowledged that its task was to analyse

whether clause 3.30 (special provisions) of the contract applied to the present case, whether the situation faced by the club corresponded to a force majeure, and whether the player was entitled to the amount claimed.

37. In view of the foregoing, the Chamber started by recalling the wording of clause 3.30

(special provisions) of the contract: “lf the competitions are suspended or postponed by an authorized body such as the government of the Republic of Turkey. FIFA, UEFA or TFF), only the minimum wage will be paid to the player during the postponement / suspension period. ln such a case, the contract will automatically extend until the end of the competitions within the scope of TFF instructions. lf the matches are completed after the postponement / suspension period, the Club will pay the monthly fees to the Player. The Player acknowledges and undertakes that the failure of the club to make the balance payments for this interrupted period cannot be used by him as a justified termination reason. The club reserves the right to make a reduction in fees within the scope or damages incurred due to postponement / suspension due to postponement / suspension. ln such a case. the parties will agree on the discount amount / rate. If the parties fail to reach an agreement, the Club, it will decide unilaterally about the discount provided that it is objective, measured and fair. ln the event of the cancellation of the league, the fees will be paid on a pro rata basis taking into account the matches actually played.” (Emphasis added).

38. The Chamber noted that the Respondent in fact only claims the application of the last sentence of clause 3.30, i.e., contractual fees due on a pro rata basis only for the matches effectively played by the player, following a cancellation of the league. After analysing the documentation on file, the Chamber concluded that the factual circumstances of the present case do not match the pre-requisites of the contractual provision invoked by the club, as the league temporarily suspended, not cancelled, and it was the club’s decision to

withdraw from the competition. While the first part of the clause could potentially apply, pg. 13 REF. FPSD-10441 this was not argued by the parties and the proceedings therein described were not followed. Consequently, the Chamber concluded that such clause was not applicable to the present case.

39. Having stated the above, the Chamber proceeded to analyse whether the earthquake was to be considered a force majeure situation.

40. For the sake of accuracy, the Chamber pointed out that FIFA, in its official announcements, has referred to the earthquake in Türkiye as an “exceptional situation caused by the natural disaster affecting Türkiye”; the legal concept of force majeure however was not mentioned in any of the announcements.

41. Subsequently, the Chamber recalled the CAS jurisprudence with regard to force majeure, in particular case CAS 2021/A/8277, an excerpt of which is quoted below: “Force majeure takes place in the presence of extraordinary and unforeseeable events that occur beyond the sphere of activity of the person concerned and that impose themselves on him/her in an irresistible manner. It implies an objective (rather than a personal) impediment, beyond the control of the “obliged party”, that is unforeseeable, that cannot be resisted and that renders the performance of the obligation impossible. The unforeseen event must have been unavoidable in the sense that the party seeking to be excused from performing could not have prevented it. Moreover, force majeure is not intended to excuse any possible negligence or lack of diligence from a party, and is not applicable in cases where a party does not take reasonable steps or specific precautions to prevent or limit the effects of the external interference. As force majeure introduces an exception to the binding force of an obligation, the conditions for the occurrence of force majeure are to be narrowly interpreted.

According to Swiss law, the legal consequences of non-performance of a contract depend on whether the impossibility to discharge the obligation because of force majeure is

temporary or permanent and whether one of the contractual parties is at fault. Should the impossibility be of a permanent nature, Article 119 of the Swiss Code of Obligations (CO) applies. Should the impossibility to fulfil the obligations be only temporary, the counterparty can, at its discretion, a) set an appropriate time limit for subsequent performance or ask the court to set such time limit (Article 107 CO), b) under certain circumstances, insist on performance without delay (Article 108 CO), c) waive performance and claim damages (Article 107(2) CO or d) terminate the agreement and demand the return of any performance already made. In addition, it may claim damages for the lapse of the contract, unless the debtor can prove that he was not at fault (Article 109 CO). In accordance with Article 97 CO, the debtor’s fault is presumed. Pursuant to Article 99(1&2) CO, the debtor is generally liable for any fault attributable to him. The scope of such liability is determined by the particular nature of the transaction and in particular is judged more leniently where the obligor does not stand to gain from the transaction”. pg. 14

REF. FPSD-10441

42. In this respect, the Chamber was in agreement that the earthquake was without any doubt an extraordinary and unforeseeable event that occurred beyond the sphere of activity of club and that imposed its