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According to a report published recently on the Ukrainian news site Terrikon, the football agenda was shaken by the claim that Shakhtar Donetsk had lodged a complaint with FIFA against Galatasaray on account of Tete's transfer to Galatasaray.
According to a report published recently on the Ukrainian news site Terrikon, the football agenda was shaken by the claim that Shakhtar Donetsk had lodged a complaint with FIFA against Galatasaray on account of Tete's transfer to Galatasaray.[1] It soon emerged that the report was true. According to Fotospor's report, Galatasaray applied to the Turkish Football Federation (TFF) for a licence for Tete. The TFF requested the Brazilian player's licence from the Ukrainian Association of Football (UAF). The UAF informed it that the player's club, Shakhtar Donetsk, had a reservation regarding this transfer. It did not send the licence to the TFF. Nor did it give permission to Galatasaray. Galatasaray thereupon applied to FIFA for Tete's licensing procedures. Even if FIFA issues Galatasaray a provisional licence, this will not mean that Tete's transfer has been completed. It will only prevent Tete from being kept away from football[2].
The discussions that led us to the issue addressed in this article began with the announcement made by Galatasaray Sports Club on 10.08.2023 to the Public Disclosure Platform (KAP), stating that an agreement had been reached with the professional footballer Mateus Cardoso Lemos Martins (Tete) for a transfer with a 4+1 season option, under which a net guaranteed fee of EUR 2,800,000 for each season and a total net signing fee of EUR 3,100,000 would be paid.[3] According to the report, Shakhtar Donetsk filed a complaint requesting not only the cancellation of Tete's transfer to Galatasaray but also the punishment of both the player and the club.
Although it was claimed by Galatasaray that the contract was terminated early, Shakhtar has asserted that Tete's contract with the club continued until the end of 2023, that, because Tete returned to Ukraine during the war, he can no longer terminate the contract unilaterally, and that the transfer in question is therefore illegitimate. Accordingly, Shakhtar is requesting that sanctions be imposed both on the player, who has no right to transfer to another club, and on Galatasaray, which carried out the transfer without an agreement with the club. But is this request well founded?
By a press release issued by FIFA on 7 March 2022, Annexe 7 to the Regulations on the Status and Transfer of Players, affecting athletes and coaches affected by the war in Ukraine, was published[4]. Described as temporary rules addressing the exceptional situation arising from the war in Ukraine, the Annexe in question[5] aims to reduce the impact of Russia's invasion of Ukraine on athletes and coaches, and to prevent possible disputes, by making temporary amendments to the FIFA Regulations on the Status and Transfer of Players (RSTP).
The temporary rules set out in Annexe 7 have been deemed applicable to every employment contract containing a foreign element between foreign athletes or coaches in Ukraine and clubs affiliated to the Ukrainian Association of Football (UAF) or the Football Union of Russia (FUR).
On 21 June 2022, the Bureau of the FIFA Council decided, taking into account that Russia's attacks on Ukrainian territory had continued since February 2022, that the rules of Annexe 7 would remain in force until 30 June 2023.
Articles 2, 3 and 4 of the Annexe in question contain the rules on the suspension of employment contracts of an international dimension signed with clubs affiliated to the UAF and FUR. Through Article 2 of the Annexe, with the opportunity granted to foreign players or coaches and, at the same time, in order to protect Ukrainian clubs, irrespective of the provisions of the RSTP and unless expressly agreed otherwise between the parties, where there is a contract of an international dimension between a club affiliated to the UAF and a foreign player or coach, the contracts will be deemed automatically suspended in Ukraine until the end of the season, without the parties needing to take any action.[6] Similar protection applies to athletes and coaches registered with the FUR.
Where there is an employment contract of an international dimension between a foreign player or coach and a club affiliated to the FUR, and no mutual agreement can be reached with the club, the contract may be unilaterally suspended by the player or coach until 30 June 2022. In this context, suspension of the contract means that foreign players and coaches will be deemed to be without a contract until 30 June 2022 and will therefore be free to enter into a new employment contract with another club without facing any disciplinary, financial or other consequences.[7]
The press release also stresses that, pursuant to the rule in Article 18(2) of the RSTP, the minimum length of a contract (from the date of entry into force until the end of the season) does not apply to a new contract signed with another club by a professional athlete or coach whose contract has been suspended in accordance with the provisions above.[8]
On 22 May 2023, with the war continuing, these temporary rules in Annexe 7 were amended by FIFA by being extended and clarified, and with these amendments the validity of Annexe 7 was extended until 30 June 2024.[9] In the statement made by FIFA, it was indicated that this decision was taken following discussions between FIFA and UEFA, the European Club Association, FIFPRO and the World Leagues Forum.
In order to continue helping the athletes, coaches and clubs affected by the war in Ukraine, while at the same time striking a reasonable balance among all the interests concerned and preventing abuse, Annexe 7 to the RSTP granted them the right to suspend their contracts unilaterally until 30 June 2024, provided that they inform the clubs in writing by 1 July 2023. The exception to this provision is likewise set out in the annexe. Foreign players and coaches who, despite the war in Ukraine, decide to arrive in, return to, or not leave the territory of Ukraine or Russia cannot rely on the revised Annexe 7 to suspend an ongoing contract[10]. Therefore, from the entry into force of this amendment, Annexe 7 to the RSTP will not apply to the following:
- Foreign athletes who are still registered with a club affiliated to the UAF or FUR;
- Foreign coaches who are still continuing to render services to a club affiliated to the UAF or FUR; and
- Employment contracts of foreign athletes or coaches concluded or extended with clubs affiliated to the UAF or FUR after 7 March 2022[11].
In order to prevent abuse and the undesirable consequences of unilateral suspension, players whose contracts have been suspended on the basis of Annexe 7 will not be able to do the following during the period of suspension;
- Be subject to a transfer (whether permanent or on loan) against payment; and
- Sign a new contract with another club affiliated to the UAF or FUR.
With these amendments, which entered into force on 21 May 2023, Annexe 7 has reached a different dimension and has given rise to new, current debates. Just as is the case with Shakhtar Donetsk's complaint to FIFA about Tete's transfer to Galatasaray, which is the main subject of this article.
It is possible to observe that Shakhtar Donetsk's objections began with the entry into force of RSTP Annexe 7, published by FIFA. The club raised numerous objections that the Annexe in question was harming it. On 13 January 2023, in case 2022/A/9016 FC Shakhtar Donetsk v. FIFA, the Court of Arbitration for Sport (CAS) rejected the objections concerning the temporary amendments made by FIFA to the RSTP and confirmed that these amendments were valid and not disproportionate.[12]
The objection against Galatasaray, on the other hand, relates to the new regulations made on 21 May 2023 to Annexe 7. Under this regulation, footballers and coaches who remain in Ukraine or Russia, or who return to one of these countries during this process, cannot exercise their right to suspend their ongoing contracts by relying on Annexe 7. That is, technically, the objection made by Shakhtar Donetsk, to the effect that, since Tete entered the country's borders, he can no longer terminate the contract unilaterally under FIFA RSTP Annexe 7, appears well founded. However, when examining this dispute, it is not possible to disregard the Bosman rulings.
As is known, under the Bosman rulings, footballers whose contracts have expired or have 6 months remaining may negotiate with any club other than the club to which they are contracted and sign a pre-contract without being subject to any permission. However, the transfer can only take place upon the expiry of the contract in force. Thanks to this ruling, if the player was within the last 6 months of his contract with Shakhtar Donetsk during Tete's transfer process to Galatasaray, it is possible to say that the contract signed between Tete and Galatasaray Sports Club is valid. This is just like Edgar Davids's transfer in 1996 from AFC Ajax to AC Milan without any fee being paid. At the end of the day, it cannot be denied that Shakhtar Donetsk has suffered a serious financial loss; however, given that the act in question can be brought within the scope of the Bosman rulings, it is possible to say that Galatasaray will emerge victorious from this legal battle, just as it does on the pitch.
Trainee Attorney at Law Aleyna Nur ACIR
Attorney at Law, Mediator Gizem ADIGÜZEL ÖZMEN
References:
- https://terrikon.com/uk/posts/449223
- https://digitalhub.fifa.com/m/3cd753a54b8723f0/original/Interpretative-Note-to-Annexe-7-of-the-Regulations-on-the-Status-and-Transfer-of-Players.pdf
- https://www.fifa.com/about-fifa/organisation/fifa-council/media-releases/fifa-adopts-temporary-employment-and-registration-rules-to-address-several
- https://www.fifa.com/legal/football-regulatory/media-releases/fifa-extends-and-adapts-temporary-employment-rules-to-address-issues-relating-to-war-in-ukraine
- https://www.fifa.com/legal/football-regulatory/media-releases/fifa-extends-and-adapts-temporary-employment-rules-to-address-issues-relating-to-war-in-ukraine
- https://digitalhub.fifa.com/m/4dd2c099ba9b6f28/original/CAS-2022-A-9016-FC-Shakhtar-Donetsk-v-FIFA.pdf
- https://www.tas-cas.org/fileadmin/user_upload/CAS_Media_Release_9016_9017.pdf
- https://theathletic.com/3428825/2022/07/18/shakhtar-donetsk-seek-e50m-of-damages-from-fifa-over-lost-transfer-fees/
- https://www.football-legal.com/content/fifa-further-extends-temporary-employment-rules-regarding-the-war-in-ukraine-fifa-circular-no-1849-22-may-2023
[1] https://terrikon.com/uk/posts/449223
[2] https://www.fotospor.com/galatasaray/tete-transferi-arap-saci-tff-lisans-vermedi-brezilyali-oynayamayacak--616134/
[3] https://www.kap.org.tr/tr/Bildirim/1184135
[4] https://www.fifa.com/about-fifa/organisation/fifa-council/media-releases/fifa-adopts-temporary-employment-and-registration-rules-to-address-several
[5] https://digitalhub.fifa.com/m/3cd753a54b8723f0/original/Interpretative-Note-to-Annexe-7-of-the-Regulations-on-the-Status-and-Transfer-of-Players.pdf
[6] RSTP Annexe 7, Art. 2
2 Employment contracts of an international dimension with clubs affiliated to the UAF
- Notwithstanding the provisions of these regulations and unless otherwise agreed between the parties, a contract of an international dimension between a player or a coach and a club affiliated to the UAF shall be considered automatically suspended until 30 June 2022.
- The minimum length of a contract established under article 18 paragraph 2 of these regulations, does not apply to any new contract concluded by the professional whose contract has been suspended in accordance with paragraph 1 above.
[7] RSTP Annexe 7, Art. 4
4 Consequences of the suspension
A player or coach whose contract has been suspended as per article 2 paragraph 1 or article 3 paragraph 1 above does not commit a breach of contract by signing and registering with a new club. Article 18 paragraph 5 of these regulations does not apply to a professional whose contract has been suspended as per article 2 paragraph 1 or article 3 paragraph 1 above.
[8] RSTP Annexe 7, Art. 2/2
[9] https://www.fifa.com/legal/football-regulatory/media-releases/fifa-extends-and-adapts-temporary-employment-rules-to-address-issues-relating-to-war-in-ukraine
[10] RSTP Annexe 7; Foreign players and coaches who have, despite the war in Ukraine, decided to arrive in, return to, or not leave the territory of Ukraine or Russia, cannot rely on the revised Annexe 7 to the RSTP to suspend an ongoing contract. Therefore, Annexe 7 to the RSTP will not be applicable as from now on to:
- foreign players who are currently still registered with a club affiliated to the UAF or FUR;
- foreign coaches who are currently still rendering their services to a club affiliated to the UAF or FUR; and
- employment contracts of foreign players or coaches that were concluded or extended with clubs affiliated to the UAF or FUR after 7 March 2022.
[11] RSTP Annexe 7; In order to prevent abuse and the undesirable consequences of a unilateral suspension, players whose contracts have been suspended on the basis of Annexe 7 would not be able, during the period of suspension:
- to be subject to a transfer (whether permanent or on loan) against payment; and
- to sign a new contract with another club affiliated to the UAF or FUR.
[12] https://digitalhub.fifa.com/m/4dd2c099ba9b6f28/original/CAS-2022-A-9016-FC-Shakhtar-Donetsk-v-FIFA.pdf
