Labour Disputes
Texto da decisão
REF FPSD-5867
Decision of the
Dispute Resolution Chamber
passed on 22 June 2022
regarding an employment-related dispute concerning the player Kemal Ademi
BY:
Angela Collins (Australia), Single Judge of the DRC
CLAIMANT:
Kemal Ademi, Switzerland
Represented by Sämi Meier
RESPONDENT:
Fatih Karagumruk AS, Turkey
Represented by Sami Dinc
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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.
4.
On 20 April 2022, the Single Judge of the DRC decided a dispute between the parties regarding the
instalments due between 31 August 2021 until 31 December 2021, and awarded the player the
amount of EUR 100,000 plus interest (FPSD-4242).
II. Proceedings before FIFA
5.
On 28 April 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
6.
In his claim, the Claimant requested payment of the following monies:
- EUR 40,000, corresponding to the last two instalments of the agreement (2x EUR
20,000) plus 5% interest p.a. as of the due dates (1 February 2022 and 1 March 2022);
- EUR 3,000 as legal costs.
7.
In this context, the player held that the Respondent remitted the first instalment of the agreement,
but subsequently failed to comply with the agreement.
8.
The player referred to the previous decision of the Single Judge of the DRC and held that also the last
two instalments, which were not claimed yet in the previous dispute, remained unpaid up to date.
b. Position of the Respondent
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9.
In its reply, the Respondent rejected the claim and held that certain amounts need to be deducted.
10. 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.
11. 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.
12. 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 and that such amount has to be deducted from the player’s
entitlement.
III. Considerations of the Single Judge of the DRC
a. Competence and applicable legal framework
13. 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 28 April 2022 and submitted for decision on 22
June 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.
14. 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), she 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.
15. 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 22 April 2022, the March 2022 edition of said regulations (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
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16. 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
17. Her 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 she will refer only to the facts, arguments and
documentary evidence, which it considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
18. 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.
19. Moreover, the Single Judge took notice of the previous decision (FPSD-4242) of the Single Judge of
the DRC, dated 20 April 2022, regarding the same settlement agreement between the parties.
20. The Single Judge noted that the Claimant requested payment of the EUR 40,000, corresponding to
2 instalments of the settlement agreement as well as legal costs.
21. 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.
22. 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
23. 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.
24. Therefore, the Single Judge decided to reject the Respondent’s argumentation to deduct amounts
and decided to award the claimed amount of EUR 40,000 corresponding to the outstanding
instalments of the agreement due between 31 January 2022 and 28 February 2022.
25. 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
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26. 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 40,000,
corresponding to the 2 last instalments resulting from the settlement agreement.
27. Furthermore, the Single Judge decided to award interest of 5% p.a. on the amount of EUR 40,000 as
of the respective due dates.
iii. Compliance with monetary decisions
28. 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.
29. 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.
30. 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.
31. 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.
32. 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
33. 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.
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34. 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.
35. 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:
- EUR 20,000 as outstanding remuneration plus 5% interest p.a. as from 1 February 2022 until the
date of effective payment;
- EUR 20,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 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.
2
.
The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration the ban shall be of
three entire and consecutive registration periods.
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 article 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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