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International Arbitration Forum

Besiktas JK v. Jeremain Marciano Lens

Case summary

At a glance

Parties
Beşiktaş AŞ (Turkey) v. Jeremain Marciano Lens (Netherlands)
Case no.
CAS 2021/A/8319
Forum and rules
Court of Arbitration for Sport, appeals procedure, CAS Code (2019 edition)
Treaty
None; Employment Agreement of 8 August 2017 (Article 9), FIFA Statutes Article 57
Tribunal
Francesco Macri (Sole Arbitrator)
Sector
Professional football; player remuneration
Outcome
Appeal dismissed and the FIFA DRC decision of 12 August 2021 confirmed (award of 25 November 2022).
Amount
The Club must pay EUR 390,000 net in outstanding remuneration (EUR 160,000 plus 5% p.a. from 1 May 2020, and EUR 230,000 plus 5% p.a. from 1 June 2020).

The dispute

Beşiktaş, an Istanbul football club, employed the Dutch player Jeremain Lens under a contract later extended to 31 May 2022. His guaranteed salary for 2019/2020 was EUR 2,300,000, and a separate image rights agreement paid him EUR 300,000 for that season. The Turkish leagues were suspended from 19 March to 12 June 2020 because of COVID-19. The Player refused a proposed settlement, and the Club then deducted 15% of his total 2019/2020 remuneration (EUR 390,000) from his salaries for March to May 2020. The Player claimed the unpaid April and May 2020 salaries before the FIFA DRC, which awarded him EUR 390,000 plus interest. On appeal, the Club relied on force majeure under Articles 136–138 of the Turkish Code of Obligations, clausula rebus sic stantibus, the FIFA COVID-19 Guidelines, UEFA emergency measures and a claimed 85% loss of revenue. It also asked for the proceedings to be stayed pending CAS 2021/A/7872.

Key holdings

  1. CAS has jurisdiction under Article 57(1) of the FIFA Statutes, Article R47 of the CAS Code and Article 9 of the Employment Agreement. FIFA regulations apply first, Swiss law additionally, and Turkish law where needed for the employment relationship. ¶¶ 37–39, 46
  2. The request to stay the proceedings pending CAS 2021/A/7872 became moot, because that award had already been rendered and was admitted into the file. ¶ 50
  3. FIFA did not declare COVID-19 a force majeure situation. Whether force majeure exists must be decided case by case under the national law governing the contract. Neither the contract nor the image rights agreement contained a force majeure clause, and Article 9 referred to FIFA and TFF regulations and Turkish labour law, not to commercial law or the Turkish Code of Obligations. ¶¶ 60–64
  4. The Club was not entitled to vary the salary unilaterally. Under Turkish Supreme Court case law, force majeure must arise around the employee; reasons arising from the workplace do not qualify. The Player's duties were only postponed, and he performed them once play resumed. ¶¶ 65–67
  5. The 15% reduction was not reasonable or proportionate. The Club gave no evidence that the pandemic significantly affected its ability to pay for the whole season, and it paid the Player more than one million euros from July to October 2020. The league was suspended for only two months, yet the reduction covered the entire season retroactively. CAS 2021/A/7872 was distinguished because the player there had agreed to the reduction. ¶¶ 71–75
  6. The appeal is dismissed and the FIFA DRC decision is confirmed. The Club must pay EUR 390,000 plus 5% interest p.a. ¶¶ 77–78; operative part

Procedural history

  1. 8 August 2017The parties sign the Employment Agreement and the Image Rights Agreement.
  2. 3 September 2020The Club tells the Player it has deducted 15% (EUR 390,000) of his 2019/2020 remuneration because of COVID-19.
  3. 18 February 2021The Player files a claim with the FIFA DRC.
  4. 12 August 2021The FIFA DRC partly accepts the claim and awards EUR 390,000 plus interest.
  5. 20 September 2021The Club files its Statement of Appeal with CAS.
  6. 12 November 2021Francesco Macrì is appointed Sole Arbitrator.
  7. 13 December 2021The Sole Arbitrator rejects the Club's request to stay the proceedings; the case is decided on the written submissions.
  8. 25 November 2022Award: appeal dismissed and the FIFA DRC decision confirmed.

Tribunal, counsel and experts

Decided by

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Keywords

Summary generated with AI from the published documents — refer to the award for the authoritative text.

Case ID
CAS 2021/A/8319
Claimant
Besiktas JK
Respondent
Jeremain Marciano Lens
Documents

Procedure: Appeal
Sport: Football
Matter: Contractual litigations (except transfer)
Outcome: Dismissed
Panel: Francesco Macri
Source: Court of Arbitration for Sport case database.