FIFA - Decisión disputa Durmus 17092023

REF. FPSD-10902

Decision of the Dispute Resolution Chamber passed on 17 August 2023 regarding an employment-related dispute concerning the player Ilkay Durmus BY: Frans DE WEGER (The Netherlands), Chairperson Tomislav KASALO (Croatia), member Dana MOHAMED AL-NOAIMI (Qatar), member

CLAIMANT:

Ilkay Durmus, Türkiye Represented by Oliver Prudlo

RESPONDENT:

Lechia Gdańsk S.A., Poland Represented by Maciej Balazinski pg. 2

REF. FPSD-10902

I. Facts of the case

1. On 18 June 2021, the Turkish player Ilkay Durmus (hereinafter: the player or the Claimant) and the Polish club Lechia Gdańsk S.A. (hereinafter: the club or the Respondent) concluded an employment agreement (hereinafter: the Old Contract) valid as from 1 July 2021 until 30

June 2023

2. Pursuant to the Old Contract, the club undertook to pay the player: a monthly salary of EUR 16,670 (12 instalments) net for the season 2022/2023 (gross 23% VAT is EUR 20,504); - a monthly bonus of EUR 930 (12 instalments) net for the season 2022/2023 (gross 23% VAT is EUR 1,143)

-

3. On 25 January 2023, the player and the club (hereinafter jointly referred to as the Parties) concluded a second employment contract (hereinafter: the New Contract) to be valid from 1 July 2023 until 30 June 2026.

4. In accordance with the New Contract, the Respondent undertook to pay to the Claimant

inter alia, the following amounts:

“a. For season 2023/2024 12 monthly instalments of EUR 19,000 (plus VAT (23%) is a gross amount of EUR 23,370); - a one-time fee of EUR 25,000 (plus VAT (23%), is a gross amount of EUR 30,750). - b. For season 2024/2025 12 monthly instalments of EUR 19,000 (plus VAT (23%) is a gross amount of EUR 23,370); - a one-time fee of EUR 25,000 (plus VAT (23%), is a gross amount of EUR 30,750). - c. For season 2025/2026 12 monthly instalments of EUR 19,000 (plus VAT (23%) is a gross amount of EUR 23,370); - a one-time fee of EUR 25,000 (plus VAT (23%), is a gross amount of EUR 30,750).” - pg. 3

REF. FPSD-10902

5. By correspondence dated 14 June 2023 the player put the club in default of payment of EUR 86,592 as outstanding remuneration, contextually granting a time limit of 15 days in order to remedy the default.

6. On 3 July 2023, the player notified the club the unilateral termination of the “employment relationship”, following which he remained unemployed.

II. Proceedings before FIFA

7. On 12 July 2023, 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

8. According to the player, the club failed to comply with its contractual obligations in relation to the salaries due for the period between February 2023 and June 2023, thus having accrued a debt amounting to five salaries under the Old Contract.

9. In this context, the player was of the opinion that the significant debt carried on by the club

and the lack of responses by the latter to the player’s default notice led the player to terminate the employment relationship as last available resort.

10. Consequently, the player held having had just cause to terminate the employment relationship on 3 July 2023 and demanded to be paid the relevant compensation by the club, which shall correspond to the residual value of the New Contract.

11. The requests for relief of the Claimant, accordingly, were the following: “EUR 108,240 gross as outstanding remuneration, consisting of the payments detailed

below: - • EUR 21.648 February’s salary + 5% as of 10 March 2023 • EUR 21.648 March’s salary + 5% as of 10 April 2023 • EUR 21.648 April’s salary + 5% as of 10 May 2023 • EUR 21.648 May’s salary + 5% as of 10 June2023 • EUR 21.648 June’s salary + 5% as of 10 July 2023 Residual value of the contract, corresponding to EUR 759,000 plus VAT (23%), which is a gross amount of EUR 933,570, as follows: - • For season 2023/2024 i.e. 1 July 2023 to 30 June 2024 EUR 253.000 plus VAT (23%), which is a gross amount of EUR 311.190. pg. 4 REF. FPSD-10902 • For season 2024/2025 i.e. 1 July 2024 to 30 June 2025 EUR 253.000 plus VAT (23%), which is a gross amount of EUR 311.190. • For season 2025/2026 i.e. 1 July 2025 to 30 June 2026 EUR 253.000 plus VAT (23%), which is a gross amount of EUR 311.190.” b. Position of the club

12. In its reply, the club argued that the player did not have just cause to terminate the New

Contract on 3 July 2023, namely as the said employment agreement had entered into force only two days before the expiry of the Old Contract and the club has not failed to comply with any contractual obligations under the former.

13. In this respect, the club acknowledged nonetheless the existence of EUR 88,000 net as outstanding remuneration under the Old Contract but referred to said agreement as a separate and different employment relationship, which breach therefore could not be deemed as a valid ground for the termination of the new contract.

14. Furthermore,the club contested the applicability of the VAT to the sums claimed by the player and requested to pay the relevant amounts as net only, as in line with the wording of the Old Contract.

15. The requests for relief of the club, accordingly, were to limit the amount to be awarded to the player to the sum of EUR 88,000 net and reject any further demands by the player.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

16. 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 12 July 2023 and submitted for decision on 17 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.

17. 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 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 Turkish player and a Polish club. pg. 5

REF. FPSD-10902

18. 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 Regulations on the Status and Transfer of Players (May 2023 edition), and considering that the present claim was lodged on 12 July 2023, the aforementioned edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

19. 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 Transfer Matching System (TMS).

c. Merits of the dispute

20. 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

21. 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 whether the player had just cause to terminate the employment relationship.

22. In particular, the members of the DRC noted that the club acknowledged the existence of overdue payables in favour of the player based on the Old Contract but contextually argued

that the New Contract shall be not considered as an extension of the old one, hence any violation of the latter would have not entitled the player to terminate the New Contract because there were no outstanding sums in that respect.

23. In this context, the Chamber acknowledged that in order to establish whether the aforementioned termination has occurred with just cause by the Claimant, the DRC shall first determine whether the relevant violation of the Old Contract shall be deemed as such also in relation to the New Contract and, in the affirmative, whether it would entitle the player to terminate the New Contract on 3 July 2023. pg. 6

REF. FPSD-10902

24. In this respect, the Chamber firstly observed that the club acknowledged the existence of outstanding salaries in favour of the player amounting to EUR 88,000 and corresponding to the period between February 2023 and June 2023. Moreover, the Chamber noted that, adopting the VAT rate indicated in the Old Contract, i.e., 23%, the aforementioned sum would correspond to the net value of the amount requested by the player as gross in his claim, i.e., EUR 108,240.

25. Consequently, the DRC concluded that the Parties essentially agree on the effective amount which resulted outstanding at the time of the termination on 3 July 2023.

26. In continuation, the Chamber observed that the duration of the employment relationship between the Parties under the Old Contract would be until 30 June 2023, whereas the New Contract would start from 1 July 2023, i.e., the following day. Furthermore, the DRC noted that in spite of starting on such date, the New Contract was signed by the Parties on 25

January 2023, thus about 5 months before the expiry of the Old Contract.

27. Most notably, the Chamber observed that both the mentioned agreements were constitutive of an employment relationship having the same parties (i.e., the player and the club) and the same contractual object (i.e., remuneration by the club as consideration for

the player’s footballing activity).

28. With the foregoing in mind, the DRC firmly established that both the mentioned contracts referred to the same employment relationship and, in particular, that the New Contract effectively constitutes a renewal of the Old Contract.

29. Accordingly, the Chamber emphasized that, in principle, any breach by the club under the Old Contract may equally produce its effects under the New Contract if not remedied by the club, because the employment relationship of the Parties was governed by both the Old and the New Contracts. In this respect, the members of the DRC wished to remark that a different interpretation would allow clubs to partially escape the financial consequences of their contractual default every time an employment relationship is renewed pending the outstanding remuneration in favour of their players.

30. In continuation, the Chamber referred to the Football Tribunal’s well-established jurisprudence and emphasised that, as a general rule, only a breach or misconduct which is of a certain severity justifies the termination of a contract without notice. In other words, only when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. A premature termination of an employment contract can only ever be an ultima ratio measure.

31. In this respect, the DRC referred to the wording of art. 14bis par. 1 of the Regulations, in accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries on their due dates, the player will be deemed to have a just cause to terminate his contract, pg. 7

REF. FPSD-10902 provided that he has put the debtor club in default in writing and has granted a deadline of at least 15 days for the debtor club to fully comply with its financial obligation(s).

32. With the foregoing in mind, the Chamber observed that at the time of the termination the player would be entitled to a total of EUR 88,000 net or EUR 108,240 gross, which

corresponded to about 5-month salaries under the Old Contract. Furthermore, the Chamber noted that the player has provided written evidence of having put the club in default on 14 June 2023 i.e., at least 15 days before unilaterally terminating the employment relationship on 3 July 2023.

33. In view of the above, the DRC concluded that the player had a just cause to unilaterally terminate the employment relationship, based on art. 14bis of the Regulations. ii. Consequences

34. Having stated the above, the members of the Chamber turned their attention to the question of the consequences of such unjustified breach of contract committed by the club.

35. The Chamber observed that the outstanding remuneration at the time of termination, coupled with the specific requests for relief of the player, are equivalent to five salaries and five monthly bonuses under the Old Contract, amounting to EUR 88,000 net (i.e., EUR 17,600 x 5).

36. 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 the amounts which were outstanding under the contract at the moment of the termination, i.e., EUR 88,000 net.

37. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amounts as from the relevant due dates until the date of effective payment.

38. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the player by the club in the case at stake. In doing so, the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including in

particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. pg. 8

REF. FPSD-10902

39. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

40. As a consequence, the members of the Chamber determined that the amount of compensation payable by the club to the player had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

41. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the contract from the date of its unilateral termination until its end date. Consequently, the Chamber concluded that the amount of EUR 759,000 net (i.e., the residual value of the New Contract) serves as the basis for the determination of the amount of compensation for breach of contract.

42. In continuation, the Chamber verified as to whether the player had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of

compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

43. In In this respect, the Chamber noted that the player remained unemployed since the unilateral termination of the contract.

44. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case the player did not sign any new contract following the termination of his previous contract, as a general rule, the compensation shall be equal to the residual value of the contract that was prematurely terminated.

45. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the club must pay the net amount of EUR 759,000 net to the player (i.e. the residual value of the contract), which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

46. Lastly, taking into consideration the player’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the player interest on said pg. 9

REF. FPSD-10902 compensation at the rate of 5% p.a. as of 3 July 2023 (the date of termination) until the date of effective payment. iii. Compliance with monetary decisions

47. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par. 1 and 2 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.

48. In this regard, the DRC highlighted 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. The overall maximum duration of the registration ban shall be of up to three entire and consecutive

registration periods.

49. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the full amount due (including all applicable interest) to the Claimant within 45 days of notification of the decision, failing which, at the request of the Claimant, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become immediately effective on the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.

50. The Respondent shall make full payment (including all applicable interest) to the bank account provided by the Claimant in the Bank Account Registration Form, which is attached to the present decision.

51. The DRC 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. 24 par. 8 of the Regulations.

d. Costs

52. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which “Procedures are free of charge where at least one of the parties is a player, coach, football agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

53. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings. pg. 10

REF. FPSD-10902

54. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 11

REF. FPSD-10902

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Ilkay Durmus, is partially accepted.

2. The Respondent, Lechia Gdańsk S.A., must pay to the Claimant the following amount(s):

 EUR 17,600 net as outstanding remuneration plus 5% interest p.a. as from 10 March 2023 until the date of effective payment;   EUR 17,600 net as outstanding remuneration plus 5% interest p.a. as from 10 April 2023 until the date of effective payment;  EUR 17,600 net as outstanding remuneration plus 5% interest p.a. as from 10 May 2023 until the date of effective payment;   EUR 17,600 net as outstanding remuneration plus 5% interest p.a. as from 10 June 2023 until the date of effective payment;   EUR 17,600 net as outstanding remuneration plus 5% interest p.a.as from 3 July 2023 until the date of effective payment;   EUR 759,000 net as compensation for breach of contract without just cause plus 5% interest p.a. as from 3 July 2023 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. Full payment (including all applicable interest) shall be made to the bank account indicated in the enclosed Bank Account Registration Form.

5. Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment

(including all applicable interest) is not made within 45 days of notification of this decision, the following consequences shall apply:

1. The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid. The maximum duration of the ban shall be of up to three entire and consecutive registration periods.

2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in the event that full payment (including all applicable interest) is still not made by the end of the three entire and consecutive registration periods.

6. The consequences shall only be enforced at the request of the Claimant in accordance

with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players. pg. 12

REF. FPSD-10902

7. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 13

REF. FPSD-10902

NOTE RELATED TO THE APPEAL PROCEDURE: According to article 57 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 17 of the Procedural Rules Governing the Football

Tribunal).

CONTACT INFORMATION

Fédération Internationale de Football Association FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 14