FIFA - Decisión disputa Oztumer 16082023

REF. FPSD-10373

Decision of the Dispute Resolution Chamber passed on 16 August 2023 regarding an employment-related dispute concerning the player Erhun Aksel Öztümer BY: Roy Vermeer (the Netherlands) Single Judge of the Dispute Resolution Chamber

CLAIMANT:

Erhun Aksel Öztümer, Great Britain Represented by Mr Mikail Hasbek

RESPONDENT: Adana Demirspor, Türkiye Represented by Mr Umur Varat and Ms Aygin Kuruloğlu pg. 2

REF. FPSD-10373

I. Facts of the case

1. On 28 January 2022, the British player Erhun Aksel Öztümer (hereinafter: Claimant or player) and the Turkish club Adana Demirspor (hereinafter: club or Respondent) concluded an employment contract (hereinafter: the Contract) valid as from the date of signature until 31 May 2023.

2. According to the Contract, the Respondent undertook to pay the Claimant the following remuneration: - Advance payment of TRY 365,400 by no later than 31 January 2022; - “Annual salary” of TRY 1,458,600 payable in 5 equal instalments of TRY 291,720 between February 2022 and June 2022. - Annual salary of TRY 3,997,400 payable in 10 instalments between September 2022 and June 2023; - Monthly accommodation allowance of TRY 15,270 between September 2022 and June

2023.

3. During February 2023, following the earthquake which took place in Türkiye, the Respondent was forced to relocate due to damage caused to its facilities.

4. On 15 February 2023, the Sporting Director of the Respondent allegedly contacted the Claimant via WhatsApp, informing him that he is not required to attend trainings any

longer and that he could submit a permission slip to find a new team.

5. On 16 February 2023, the Claimant was removed from the official WhatsApp group of the Respondent.

6. On 3 March 2023, the Respondent allegedly sent a warning letter to the Claimant informing him that he was absent from training.

7. On 13 March 2023, the Claimant sent an official correspondence to the Respondent informing the latter that he had been excluded from training, that he had been training on his own since 19 February 2023, and that he wanted clarification about his contractual situation.

8. On 20 March 2023, the Respondent sent to the Claimant a notarized termination notice via WhatsApp. Said notice stated that the Claimant was warned that he had been absent from training several times and fined three monthly salaries for such contravention in accordance with the internal regulations of the Club.

9. On 31 March 2023, the Claimant put the Respondent in default of payment of TRY 2,490,099.66 and granted a deadline of 10 days to remedy the alleged breach. pg. 3

REF. FPSD-10373

10. On 7 April 2023, the Respondent replied to the Claimant, alleging that it had just cause to terminate the Contract and that the Claimant “owed money to the club”. The Respondent equally granted a deadline of 10 days to remedy the alleged breach.

II. Proceedings before FIFA

11. On 28 May 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. The Claimant requested outstanding remuneration and compensation due to the allegedly unlawful termination of the Contract by the Respondent.

13. In his claim, he argued that he was excluded from training and ceased to receive remuneration after 15 February 2023, when the Respondent’s Sporting Director

informed him that he was no longer required to attend.

14. The Claimant outlined that he was never formally notified nor fined, contrary to the Respondent’s allegation in the correspondence exchanged, that he was warned to return to training, and that, on the contrary, he was told not to come to training.

15. The Claimant alleged that the warning sent by the Respondent via the notary public was remitted to a “random” address in Istanbul, where the Claimant was not registered. The Claimant stated that, although said address is contained on the Contract, it was added subsequently and retroactively by an official of the club in bad faith.

16. The Claimant also anticipatively argued that he had dual citizenship, Turkish and British, and that consequently there was an international dimension concerning the present proceedings.

17. The Claimant thus requested the following amounts: - TRY 1,106,733.33 as outstanding remuneration, corresponding to the following unpaid instalments: o TRY 40 – pro-rata remaining salary December 2022; o TRY 399,740 – salary January 2023; o TRY 15,270 – accommodation allowance January 2023; o TRY 399,740 – salary February 2023; o TRY 15,270 – accommodation allowance February 2023; o TRY 276,673.33 – pro-rata salary March 2023 pg. 4

REF. FPSD-10373 - TRY 1,383,366.33 as compensation (corresponding to the alleged residual value of the Contract) - Interest as from the due dates. b. Reply of the Respondent

18. In its reply, the Respondent contested the admissibility of the claim, arguing that the Claimant is a Turkish national and that, in accordance with Turkish law, Turkish citizenship takes precedence over the British citizenship.

19. The Respondent also outlined that it sent the notice to the Claimant’s address which was stated on the Contract, and that he address was not “random”.

20. The Respondent also acknowledged that, although the notification was sent to the Claimant’s address, it was not validly received by the recipient – i.e. the delivery was incomplete.

21. The Respondent thus argued that it did “every possible thing they can”, that it granted a deadline for the Claimant to revise his behaviour, and that due to the Claimant’s repeated absence, it had no other choice but to terminate the Contract.

22. Furthermore, the Respondent objected to the alleged message sent by the Sporting Director, saying “we do not know those conversations really happened and that it was the Sporting Director who was texting with the player”.

23. The Respondent also argued that the Claimant is “very experienced” and therefore it is unrealistic that he would train solitarily for one month without any complaints.

24. The Respondent also argued that it paid “all financial dues” to the Claimant and provided proofs of remittance from its bank in this respect, in the total amount of TRY 2,365,960.

The Respondent also outlined that it fined the Claimant TRY 999,350 as a result of his absence, which should be deducted from his overall outstanding remuneration.

25. In conclusion, the Respondent requested the claim to be deemed inadmissible, failing which, it should be rejected.

c. Replica of the Claimant

26. In his replica, the Claimant firstly insisted on the admissibility of the claim, arguing that both parties agreed in the Contract for FIFA to have jurisdiction.

27. Furthermore, as to the notification of the Respondent’s alleged correspondence, the Claimant highlighted that the former intentionally entered an erroneous address in the Contract in order to send communications in bad faith. The Claimant highlighted that he pg. 5

REF. FPSD-10373 is not the only player to have this issue with the Respondent, mentioning another teammate as an example, and pointing out that whilst the team is based in the city of Adana, the address provided is in Istanbul. He specified that it is unlikely that he would

be registered at an address in a different city, and that the Respondent’s failure to update his address properly should not result in a procedural disadvantage for him.

28. The Claimant also pointed out that he received the Contract offer which he ultimately signed in blank, and that said offer contained no address. The address in Istanbul was, hence, unilaterally entered by the Respondent after signature.

29. The Claimant also insisted that it was indeed the sporting director who removed the Claimant from the WhatsApp group chat. Although he is no longer employed by the club, the Claimant insists that the sporting director was employed at the time he was expelled from the team.

30. The Claimant also pointed out that some of the payments submitted by the Respondent as evidence related to the previous season (2021-2022), and that, by way of consequence, the line of argument that the Respondent paid all due amounts should be rejected. In terms of such payments, the Claimant only argued more specifically that the payment of TRY 199,990 related to the March salary of 2021/2022.

31. The Claimant, thus, insisted on his previous request for relief.

d. Duplica of the Respondent

32. In its duplica, the Respondent reiterated most of its arguments, adding as follows: - The Respondent did “everything in its power” to allow the player to return to training despite his prolonged absence; - The Respondent’s accounting department made a mistake referencing the payment of 6 July 2022 as the “March salary for 2021/2022”; - Notwithstanding such mistake, the Respondent insists on having made total payment of TRY 2,165,970, and that the Claimant was entitled to a total amount of TRY 3,283,194 for that season. The Respondent also subsequently argued that the Claimant was fined with an amount of TRY 999,350 upon his contractual termination, and that, as a result, the maximum amount of outstanding remuneration at the time

of termination could have amounted to TRY 117,874.

33. Thus, the Respondent requested once again to deem the claim inadmissible, failing which it should be rejected. pg. 6

REF. FPSD-10373

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

34. First of all, the Single Judge Dispute Resolution Chamber (hereinafter also referred to as Single Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was presented to FIFA on 28 May 2023 and submitted for decision on 16 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.

35. Subsequently, the Single Judge 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), he is – in principle – competent to deal with the matter at stake.

36. Notwithstanding, the Single Judge took note of the fact that the jurisdiction of the Football Tribunal was called into question by the Respondent, who insisted that the Claimant possessed both British and Turkish citizenship, and that, according to the law of Türkiye, the dispute is one of a domestic nature. The Respondent, thus, argued that the matter falls outside the scope of the Football Tribunal’s competence, as defined by art. 22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players.

37. The Single Judge further noted that the player insisted on the competence of FIFA to decide

on the matter, alleging that, whilst the former did hold a double nationality – namely that of Great Britain and Türkiye – he was registered with the Respondent as a British citizen, pointing to the matter’s international dimension.

38. In respect of the above submissions, the Single Judge took note of the evidence on file, as well as, in accordance with art. 13 par. 4 of the Procedural Rules, documentation contained on the Transfer Matching System (TMS).

39. In light of said evidence, he was able to establish two key aspects concerning the jurisdiction of the present dispute. Firstly, the Contract signed between the parties, whilst not making reference to the Claimant’s nationality, outlined that the Claimant was born, and was currently residing in the United Kingdom. Secondly, and more significantly, the Claimant had been entered into TMS as a British citizen, with a British passport, and with the relevant player passport, issued by The FA, stating that his nationality is “English”.

40. Considering these factors, the Single Judge deemed that the evidence available overwhelmingly suggested that the Claimant was a British citizen for the purposes of the contractual relationship with the Respondent. Furthermore, the Single Judge emphasised pg. 7

REF. FPSD-10373 that the Respondent failed to adduce any meaningful evidence to substantiate its allegation that the Claimant was a Turkish citizen, rather than a British one.

41. Thus, and in accordance with art. 22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players, the Single Judge concluded that the present dispute is one of an international dimension, and that it had jurisdiction to hear it on its merits.

42. Subsequently, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (March 2023 edition), and considering that the present claim was lodged on 28 May 2023, the March 2023 edition

of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. b. Burden of proof

43. The Single Judge 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 Single Judge 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 TMS.

c. Merits of the dispute

44. Its competence and the applicable regulations having been established, the Single Judge entered into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Single Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand.

1. Main legal discussion and considerations

45. The foregoing having been established, the Single Judge moved to the substance of the matter, and took note of the fact that the parties strongly dispute the lawfulness of the contractual termination by the Respondent.

46. In this context, the Single Judge acknowledged that his task was to determine, based on the evidence on file, whether or not the Respondent had a just cause to terminate the Contract on 20 March 2023, and consequently, whether any liability towards the Claimant may arise. pg. 8

REF. FPSD-10373

47. The Single Judge firstly wished to revisit the parties’ respective submissions, starting with the Claimant, who was recalled having argued that the Contract was terminated without just cause, as the Respondent not only withheld his remuneration, but also excluded him from training, removed him from the official team WhatsApp group, and sent fraudulent

notifications alleging his absence from training.

48. On the other hand, the Single Judge recalled that the Respondent argued that it consistently complied with the terms of the Contract, contesting that the Claimant was notified by the Sporting Director, as the latter is no longer employed by itself, and that the Claimant was warned and fined as a result of his unauthorised absence, leaving no outstanding amounts at the end of the contractual period.

49. Before entering the analysis of the above arguments, the Single Judge recalled the principle of burden of proof, in accordance with which a party that asserts a certain fact also bears the burden of proving its veracity.

50. Equally, the Single Judge wished to recall the longstanding jurisprudence of the Football Tribunal, in accordance with which a premature termination of an employment contract must constitute an ultima ratio measure. Where more lenient courses of action are available to the parties to remedy their contractual relationship, these should be used readily, as opposed to immediately terminating the respective contract. Only contractual breaches of a certain severity or consistency permit a party to lawfully depart from an employment contract prematurely.

51. Bearing the above in mind, the Single Judge observed that the following points were undisputed based on the evidence on file. Firstly, in respect of the correspondence outlining that the Sporting Director had told the Claimant that he was no longer desired at the club, and that he should refrain from attending training, the Single Judge noted that the Respondent, apart from asserting that said Sporting Director was no longer an employee of the club, adduced no countervailing evidence that another person had occupied said position at the relevant time.

52. Moreover, the Single Judge was able to take note of the fact that the Claimant was undisputedly removed from the official WhatsApp group of the Respondent, a clear act of exclusion from the team and one which constitutes a breach of contract by the

Respondent.

53. Additionally, the Single Judge considered that, although the Respondent provided a warning to the Claimant about his allegedly unauthorised absence, said warning was not

only contrary to the previous timeline – i.e. that the Claimant had been excluded from the official WhatsApp group, and told to refrain from attending training – but also, and in any event, as confessed by the Respondent in its submission, never received by the Claimant. pg. 9

REF. FPSD-10373

54. Lastly, the Single Judge deemed it significant that the Respondent had been put into default on 13 March 2023, after the attempted remittance of the warning dated 3 March 2023; in this respect, had the Respondent intended to properly warn the Claimant, or continue to pursue the Contract, it would have replied to said default notice and referred to said previous warning.

55. Overall, the Single Judge was of the opinion that the circumstances surrounding the termination do not point to an ultima ratio measure, and that the alleged breaches of contract by the Claimant were neither consistent, nor substantial enough to permit an early termination of the Contract.

56. Thus, it was concluded that the Respondent lacked just cause to terminate the Contract prematurely, rendering it liable to pay compensation to the Claimant.

57. Lastly, and as the warning letter dated 3 March 2023 was not successfully remitted, in the absence of an evident just cause to sanction the player, the Single Judge decided to disregard any purported fine issued by the Respondent for the purposes of calculating the amounts due to the Claimant. ii. Consequences

58. Having stated the above, the Single Judge turned his attention to the question of the consequences of such unjustified breach of contract committed by the Respondent.

59. The Single Judge observed that the amount outstanding at the time the Contract was terminated amounted to TRY 1,245,070 (corresponding to the amount claimed by the Claimant, but including the entire salary and accommodation allowance for March 2023, as more than 15 days had been worked in said month).

60. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,

the Single Judge 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. TRY 1,245,070.

61. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Single Judge 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 following dates: - On the amount of TRY 40, as from 1 January 2023 until the date of effective payment; - On the amount of TRY 399,740 – as from 1 February 2023 until the date of effective payment; - On the amount of TRY 15,270 – as from 1 February 2023 until the date of effective payment; pg. 10

REF. FPSD-10373 - On the amount of TRY 399,740 – as from 1 March 2023 until the date of effective payment; - On the amount of TRY 15,270 – as from 1 March 2023 until the date of effective payment; - On the amount of TRY 399,740 – as from 21 March 2023 until the date of effective payment; - On the amount of TRY 15,270 – as from 21 March 2023 until the date of effective payment.

62. Having stated the above, the Single Judge 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 Single Judge 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.

63. In application of the relevant provision, the Single Judge held that he 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 Single Judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

64. As a consequence, the Single Judge 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 Single Judge recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

65. Bearing in mind the foregoing as well as the claim of the player, the Single Judge 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 Single Judge concluded that the amount of TRY 1,245,030 (i.e. the residual value of the Contract, or three monthly salaries between April 2023 and June 2023) serves as the basis for the determination of the amount of compensation for breach of contract.

66. In continuation, the Single Judge verified as to whether the player had signed an employment contract with another club during the relevant period of time, by means of pg. 11

REF. FPSD-10373 which he would have been enabled to reduce his loss of income. According to his constant practice 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.

67. As the Claimant had remained unemployed, neither mitigation nor additional compensation was due in the case at hand.

68. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Single Judge decided that the club must pay the amount of TRY 1,245,030 to the player, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

69. Lastly, taking into consideration the player’s request as well as the constant practice of the Single Judge in this regard, the latter decided to award the player interest on said compensation at the rate of 5% p.a. as of 21 March 2023 until the date of effective payment. iii. Compliance with monetary decisions

70. Finally, taking into account the applicable Regulations, the Single Judge 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.

71. In this regard, the Single Judge 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.

72. Therefore, bearing in mind the above, the Single Judge 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.

73. 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. pg. 12

REF. FPSD-10373

74. The Single Judge 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

75. The Single Judge 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 Single Judge decided that no procedural costs were to be imposed on the parties.

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

77. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 13

REF. FPSD-10373

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Erhun Aksel Öztümer, is admissible.

2. The claim of the Claimant is partially accepted

3. The Respondent, Adana Demirspor, must pay to the Claimant the following amount(s): - TRY 1,245,070 as outstanding remuneration plus interest p.a. as follows: - 5% interest p.a. over the amount of TRY 40 as from 1 January 2023 until the date of effective payment; - 5% interest p.a. over the amount of TRY 415,010 as from 1 February 2023 until the date

of effective payment; - 5% interest p.a. over the amount of TRY 415,010 as from 1 March 2023 until the date of effective payment; - 5% interest p.a. over the amount of TRY 415,010 as from 21 March 2023 until the date of effective payment. - TRY 1,245,030 as compensation for breach of contract without just cause plus 5% interest p.a. as from 21 March 2023 until the date of effective payment.

4. Any further claims of the Claimant are rejected.

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

6. 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. pg. 14

REF. FPSD-10373

7. 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.

8. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 15

REF. FPSD-10373

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. 16