Labour Disputes
Texto da decisão
REF. FPSD-8294
Decision of the
Dispute Resolution Chamber
passed on 1 June 2023
regarding an employment-related dispute concerning
the player Joseph Attamah
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Johan van Gaalen (South Africa), Member
Calum Beattie (Scotland), Member
CLAIMANT:
Joseph Attamah, Ghana
Represented by LIVIDA SPORT
RESPONDENT:
Kayserispor, Türkiye
pg. 2
REF. FPSD-8294
I. Facts of the case
1.
On 3 September 2020, the Ghanaian player, Joseph Attamah (hereinafter: the player or the
Claimant) and the Turkish club, Kayserispor (hereinafter: the club or the Respondent)
concluded an employment contract (hereinafter: the conract), valid as from the date of its
signature until the end of the 2022/2023 season in Türkiye.
2.
Clause 6 of the contract reads as follows:
3.
On 1 January 2020, Turkish tax legislations concerning athletes were amended and the
following obligations introduced (hereinafter: the tax provision):
4.
-
Athletes earning over 600,000 TL gross (approx.: EUR 32,600) per year were
required to file an annual tax declaration. Beforehand no such filing requirement
existed;
-
Withholding tax rates on salaries paid to players by Clubs in the Super League
increased from 15% to 20% (for contracts signed after 1 November 2019);
-
The 20% withholding tax declared by the Super League clubs could be deducted
from the players’ 40% income tax liability. Clubs were required to pay the 20%
withholding tax directly to the tax office. Importantly, if the clubs did not pay the
relevant withholding tax to the tax office, the tax office could seek to collect such
sums from the players.
On 5 July 2022, Mr Attamah received a tax bill from the Turkish tax authorities in respect of
his employment at Karagumruk and Kayserispor during the year 2020, where it is stated
that the following taxes shall be paid by the player:
-
TL 6,830,726 which includes (i) income tax of TL 2,742,162; (ii) a Tax Loss Penalty
of 2,742,162; and (iii) interest up until 30 October 2022 of TL 1,346,402 in respect
of 2020.
5.
On 14 July 2022, the player contacted the Respondent, requesting the latter to investigate
the situation concerning the tax request made by the Turkish tax authorities.
6.
By means of its letter dated 22 August 2022, the club replied, stating – inter alia – that the
club is “working on a plan to undertake our financial commitments and I assure you that the
club will perform all contractual duties towards your client in following days”.
pg. 3
REF. FPSD-8294
7.
By means of his letter of 1 September 2022, the player put the club in default of payment
in the amount of EUR 509,045 corresponding to the payment of the club’s alleged tax
obligations, legal fees and the player’s outstanding salaries and expenses, thereby granting
the club a deadline of 10 days to cure its breach; to no avail.
8.
On 3 October 2022, the Claimant put the Respondent in default of payment, again, this
time in the amount of EUR 357,564 in connection with the unpaid taxes and EUR 159,000
as outstanding remuneration, granting the Respondent a new deadline of 10 days to
proceed with the payment of the outstanding amounts.
II. Proceedings before FIFA
a. Position of the Claimant
9.
On 1 November 2022, the player lodged a claim against the club before FIFA, requesting
to be awarded outstanding remuneration in the total amounts of TL 6,485,092 and EUR
24,350, plus 5% interest p.a. on the amount of TL 6,485,092, broken down by the Claimant
as follows:
-
TL 2,603,409 as principal amount due as taxes derived from the player’s Personal
Income Tax as per the tax bill;
-
TL 2,603,409 corresponding to the penalty imposed by the Turkish tax authorities
as per the tax bill;
-
TL 1,278,274 as default interest already accrued;
-
EUR 19,850 as legal costs before the Turkish tax authorities;
-
EUR 4,500 as legal costs before the Football Tribunal.
10. In his claim, the player argued that “When the Club signed the Player, it knew full well that Mr
Attamah would not have agreed to be responsible for his own taxes (which was precisely why,
the Employment Contract was drafted as such), and therefore that if there was any scenario in
which Mr Attamah would have to make payment of taxes directly to the Turkish tax authorities,
the Club would nevertheless cover such payments. Appreciating that this was indeed the Player’s
expectation and that he relied on the Club’s representations in this respect, the Club not only
failed to advise the Player that he would be required to file an annual tax declaration (thus
causing the Player to be fined), but it has also failed to (i) pay the relevant withholding tax directly
to the tax authorities; and (ii) cover the Player’s income tax bill. Such conduct amounts to a clear
breach of the implied term of trust and confidence and demonstrates bad faith on the part of
the Club”.
pg. 4
REF. FPSD-8294
11. In addition, the player stressed that “the promise of receiving a net salary is understood by
foreign players to mean that all income related tax liabilities are being covered by the club. It
would therefore appear that clubs such as [the Respondent] are hoping to avoid liability
through fraudulent or negligent misrepresentation”.
12. As to the allocation of the amount due by the Respondent, as opposed to the amount due
by the Turkish club Karagumruk, the Claimant provided a tax expert report (hereinafter:
the tax report), displaying the amounts due by each of said Turkish clubs as follows:
-
Respondent’s tax liability: TL 6,485,092;
-
Karagumruk’s Sport’s tax liability: TL 345,635;
13. The player wished to underscore that he “has as yet been unable to pay the tax bill, and
interest continues to accrue on the principal tax liability and penalty at a rate of 2.5% per month,
effective from 21 July 2022 (up from the previous rate of 1.6% per month)”.
b. Position of the Respondent
14. In its reply, as to the competence, the Respondent firstly challenged the jurisdiction of FIFA
to entertain the dispute at hand, on the grounds that it is a tax-related dispute and not an
employment-related one. On this note, the Respondent argued that only Turkish courts,
applying Turkish tax law, are the only ones that should have jurisdiction to decide on the
matter at hand.
15. As to the substance, the Respondent held – inter alia – the following:
-
That the club paid all of the Claimant’s remuneration, even exceeding the
amounts due to the latter (the Respondent provides a table elaborated by the
Respondent itself; see page 4 of the reply to the claim);
-
In particular, the Respondent held that, as per the contract, the Claimant was
entitled to a total amount of EUR 1,194,000 during the year 2020 and that, during
the said period, the Respondent paid to the Claimant the total amount of EUR
1,254,273; therefore, exceeding the financial entitlement of the Claimant in an
amount of EUR 60,273;
-
That it “is shocking to see a claim where an adult claim to be unaware of Income Tax.
Every country has rules implementing Income Tax. We are also in the opinion that one
should follow updates on regulations directly affecting them. Legal principle of
“Ignorantia Legis Neminem Excusat”, which could be translated to English as “Law
Does Not Tolerate İgnorance”. The Claimant has been a resident of Republic of Turkey
pg. 5
REF. FPSD-8294
since 2014 and very well acquainted with the Turkish Society. The Claimant is trying to
draw a portrait of an introvert outsider which we find beyond the realms of material
truth”;
-
That – in accordance with the provisions of the Income Tax Law in Türkiye (note:
no copy of the said legal text has been provided) – the “tax liability of a club in wage
payments is to report correctly the amount of wages paid and withholding made, and
to declare and pay the withheld taxes” and, if “the wages earned by a football player
exceed the amount in the fourth slice of Article 103 of the Income Tax Law (650.000 TL
for the year 2021, 880.000 TL for the year 2022), the football players' annual income
tax return will be declared by the football players, and the calculated tax will be
withheld”;
-
Therefore, the club held that “Accordingly, in cases where an annual income tax
declaration is required by football players for their wage income, football players are
responsible for the fulfillment of tax duties such as filing the tax return and paying the
accrued tax, and Clubs are not responsible for this issue”;
-
Furthermore, the Respondent held that “the Claimant faced a penalty due to their
reckless and negligent attitude. It is clear and beyond doubt that The Claimant is solely
and personally liable for paying Income Tax in contrary to their arguments”.
-
In its request for relief, the Respondent requested the arguments of the Claimant
be rejected, including those in accordance with which the latter would be entitled
to be reimbursed certain amounts as legal costs / expenses, in application of art.
25 para. 8 of the Procedural Rules Governing the Football Tribunal.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 1 November 2022 and
submitted for decision on 1 June 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.
17. Subsequently, the members of the Chamber 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 (March 2022 edition), the Dispute
pg. 6
REF. FPSD-8294
Resolution Chamber is, in principle, competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
player from Ghana and a club from Türkiye.
18. However, the Chamber observed that the competence of FIFA is disputed: the Respondent
argues that, insofar as the present dispute is based on taxes payable in Türkiye, only
specialized courts of the said country can have jurisdiction to entertain it, also considering
that Turkish tax law is involved. On this note, the DRC noted that the present dispute
emanates from the employment relationship that bound the parties and that the dispute
at hand enjoys international dimension, since it concerns a Ghanaian player and a Turkish
club. In addition, the Chamber referred to the jurisprudence of the Football Tribunal and
the CAS, which is clear when establishing that both instances have jurisdiction to hear taxrelated disputes as long as those are employment-related, as occurs in the case at hand,
the alleged niche of law whereto this kind of disputes belongs not preventing the Football
Tribunal from exercising its jurisdiction over them.
19. Thus, the DRC concluded that it has jurisdiction to hear the present dispute.
20. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it 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 1 November 2022, the July 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
21. The Chamber 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 Chamber 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
22. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber 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.
pg. 7
REF. FPSD-8294
i. Main legal discussion and considerations
23. The foregoing having been established, the Chamber moved to the substance of the matter
and noted that, whereas the Claimant argues that the Respondent shall be ordered to pay
the relevant amount of the sum claimed by the said authorities via its notice of 5 July 2022,
which corresponds to TL 6,485,092 (approx. USD 329,000) as per the tax report, plus
interests and EUR 24,350 as legal costs, the Respondent argues that it duly proceeded with
the payment of the withholding taxes in accordance with Turkish Income Tax Law and that
the obligation to pay Personal Income Tax corresponds to the employee.
24. In this context, the DRC concluded that clause 6 of the contract is crystal-clear when
stipulating that the player’s remuneration must be paid net and that the club would assume
every tax obligation in connection therewith before the Turkish tax authorities. In this
respect, the Chamber took note of the fact that it remained undisputed that the Turkish
tax authorities, on 5 July 2022, urged the player to proceed with the payment of TL
6,830,726 concerning taxes (Personal Income Tax) and a penalty for non-payment.
25. In addition, the DRC acknowledged that the Claimant has duly met his burden of proof cf.
art. 13 para. 5 of the Procedural Rules, when providing: the tax bill / tax report indicating
the allocation of the amount due by the Respondent in connection with the Claimant’s
income tax during the fiscal year 2020 (which was not paid by the Respondent despite its
obligation to do so under clause 6 of the contract), as well as a penalty in an amount equal
to the principal outstanding amount.
26. Moreover, the Chamber observed that the Respondent failed to provide a copy of the law
to which it referred, preventing the DRC from assessing whether the payments with which
it allegedly proceeded were sufficient under the application of said legal text.
ii. Consequences
27. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
28. In view of all of the abovementioned considerations, the Chamber concluded that, in
application of the legal principle pacta sunt servanda, the Respondent shall be ordered to
pay to the Claimant outstanding remuneration in the amount of TL 6,485,092 (principal
outstanding taxes, tax loss penalty and interest until 5 July 2022),
29. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from 6 July 2922 until the date of effective
payment.
pg. 8
REF. FPSD-8294
iii. Compliance with monetary decisions
30. Finally, taking into account the applicable Regulations, the Chamber 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 DRC 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 DRC 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 DRC 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 Chamber 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 Chamber decided that no procedural costs were to be
imposed on the parties.
36. Likewise, and for the sake of completeness, the Chamber 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 DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 9
REF. FPSD-8294
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the Claimant, Joseph Attamah.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Kayserispor, must pay to the Claimant the following amount(s):
- TL 6,485,092 as outstanding remuneration plus 5% interest p.a. as from 6 July 2022 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. 10
REF. FPSD-8294
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
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 | [email protected] | T: +41 (0)43 222 7777
pg. 11