Labour Disputes
Texto da decisão
REF FPSD-4242
Decision of the
Dispute Resolution Chamber
passed on 20 April 2022
regarding an employment-related dispute concerning the player Kemal
Ademi
BY:
Andre dos Santos Megale (Brazil), Single Judge of the DRC
CLAIMANT:
Kemal Ademi, Switzerland
Represented by Studhalter & Meier Rechtsanwälte
RESPONDENT:
Fatih Karagumruk AS, Turkey
Represented by Sami Dinç
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REF FPSD-4242
I.
Facts of the case
1.
On 1 February 2021, the Swiss player, Kemal Ademi (hereinafter: the Claimant or player), and
the Turkish club, Fatih Karagumruk AS (hereinafter: the Respondent or club) signed an
employment contract (hereinafter: contract) valid as from the date of signature until 31 May
2021.
2.
According to the contract, the Respondent undertook to pay the Claimant a total amount of
EUR 200,000, payable in 5 instalments of EUR 40,000 at the end of the months February until
June 2021.
3.
On 7 July 2021, the parties signed an agreement (hereinafter: agreement), according to which
the Respondent undertook to pay the outstanding remuneration of EUR 160,000, as follows:
EUR 20,000 on 31 July 2021;
EUR 20,000 on 31 August 2021;
EUR 20,000 on 30 September 2021;
EUR 20,000 on 31 October 2021;
EUR 20,000 on 30 November 2021;
EUR 20,000 on 31 December 2021;
EUR 20,000 on 31 January 2022;
EUR 20,000 on 28 February 2022.
II. Proceedings before FIFA
4.
On 9 November 2021, with an amendment on 5 January 2022, 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
5.
In his claim, the player requested payment of the following monies:
EUR 100,000, corresponding to the outstanding instalments of the agreement due
between 30 September 2021 and 31 December (5x EUR 20,000) plus 5% interest p.a.
as of the due dates;
EUR 6,500 as legal costs.
6.
In his claim, the player held that the Respondent remitted the first instalment of the
agreement, but subsequently failed to comply with the agreement.
b. Position of the Respondent
7.
In its reply, the Respondent rejected the claim and held that certain amounts need to be
deducted.
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8.
On account of the above, the club argued that the player “has debts against a 3rd person”
and that the “Istanbul Anatolia 20th Execution office” sent two warrants regarding the
“garnishment” of wages of the player.
9.
In this respect, the club submitted the following documents:
“Notice of levy” dated 20 May 2021 (Annexe 1 of the reply) regarding the amount of
TRY 44,156.48 (approx. EUR 2,700) that the Claimant allegedly owes to a third person.
“First lien notice” dated 30 October 2021 (Annexe 3 of the reply) regarding an amount
of TRY 313,050.80 (approx. EUR 19,300) that the Claimant allegedly owes to a third
person.
10. The Respondent further held that it has the obligation by Turkish Law to pay the total amount
of TRY 359,207.28 to the execution offices (note: no proof of payment on file) and that such
amount has to be deducted from the player’s entitlement.
c. Replica of the Claimant
11. In his replica, the Claimant reiterated his position and pointed out the club did not contest
the initial debt of EUR 140,000 (i.e. total amount from the agreement).
12. Furthermore, the player denies that the alleged debt towards the third person and held that
no proof was submitted for any proceeding in this regard. The player held that he did not
take part in any proceeding regarding a debt towards this third person.
13. Moreover, the Claimant highlighted that such possible entitlement of a third person is
irrelevant to the dispute at hand, since the third person is no party to the present proceeding.
14. The player further held that those amounts, even if a legit claim would exist, shall not be
offset against each other.
d. Duplica of the Respondent
15. In its duplica, the Respondent reiterated its position and insisted on the deduction of the
relevant amounts.
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III. Considerations of the Single Judge of the DRC
a. Competence and applicable legal framework
16. First of all, the Single Judge of the 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 9 November 2021
and submitted for decision on 20 April 2022. Taking into account the wording of art. 34 of
the October 2021 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 Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the
Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art.
22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players (March 2022 edition),
he is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Swiss player and a Turkish club.
18. 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 2022 edition), and
considering that the present claim was lodged on 9 November 2021, the August 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
19. 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 the
Transfer Matching System (TMS).
c. Merits of the dispute
20. His 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 it will refer only to the facts, arguments and documentary evidence, which it
considered pertinent for the assessment of the matter at hand.
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i. Main legal discussion and considerations
21. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the main question of the dispute is if the player is
entitled to the payments resulting from the settlement agreement or if certain deductions
have to made, as argued by the Respondent.
22. The Single Judge noted that the Claimant requested payment of the EUR 100,000,
corresponding to 5 instalments of the settlement agreement as well as legal costs.
23. The Respondent held that certain deductions have to be applied since the Claimant allegedly
has a debt towards a third person and the club is obliged to pay such amount to the local
execution office.
24. Further, the Single Judge wished to emphasize that the Respondent did not submit any proof
that such payment was indeed remitted to the execution office
25. More important, the Single Judge pointed out that a separate alleged debt, including a third
person who is not party to the present proceedings, cannot be offset.
26. Therefore, the Single Judge decided to reject the Respondent’s argumentation to deduct
amounts and decided to award the claimed amount of EUR 100,000 corresponding to the
outstanding instalments of the agreement due between 30 September 2021 and 31
December.
27. In accordance with the Football Tribunal’s jurisprudence as well as art. 25. Par. 8 of the
Procedural Rules, the Claimant’s claim for legal costs was rejected.
ii. Consequences
28. 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 amount of
USD 100,000, corresponding to the five instalments resulting from the settlement agreement.
29. Furthermore, the Single Judge decided to award interest of 5% p.a. on the amount of EUR
100,000 as of the respective due dates.
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iii. Compliance with monetary decisions
30. 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.
31. 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.
32. 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.
33. 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.
34. 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
35. 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.
36. 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.
37. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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IV. Decision of the Single Judge of the DRC
1.
The claim of the Claimant, Kemal Ademi, is partially accepted.
2.
The Respondent, Fatih Karagumruk AS, has to pay to the Claimant, the following amount(s):
- EUR 20,000 as outstanding remuneration plus 5% interest p.a. as from 1 September 2021
until the date of effective payment;
- EUR 20,000 as outstanding remuneration plus 5% interest p.a. as from 1 October 2021 until
the date of effective payment;
- EUR 20,000 as outstanding remuneration plus 5% interest p.a. as from 1 November 2021
until the date of effective payment;
- EUR 20,000 as outstanding remuneration plus 5% interest p.a. as from 1 December 2021
until the date of effective payment;
- EUR 20,000 as outstanding remuneration plus 5% interest p.a. as from 1 January 2022 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.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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