Labour Disputes
Texto da decisão
REF. FPSD-12771
Decision of the
Dispute Resolution Chamber
passed on 8 February 2024
regarding an employment-related dispute concerning
the player Jorge Enmanuel Morel Barrios
BY:
Frans DE WEGER (The Netherlands), Chaiperson
Stijn BOEYKENS (Belgium), member
Andre DOS SANTOS MEGALE (Brazil), member
CLAIMANT:
Jorge Enmanuel Morel Barrios, Paraguay
Represented by Julio Scarone
RESPONDENT:
Club Yukatel Adana Demirspor A.S., Türkiye
Represented by Umur Varat
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REF. FPSD-12771
I. Facts of the case
1.
On 8 February 2023, the Paraguayan player Jorge Enmanuel Morel Barrios (hereinafter: the
Claimant or the Player) and the Turkish club Yukatel Adana Demirspor A.S. (hereinafter: the
Respondent or the Club) concluded an employment contract valid as from 8 February 2023
until 30 June 2023 (hereinafter: the Contract).
2.
On 11 August 2023, the Claimant and the Respondent (hereinafter jointly referred to as:
the Parties) concluded an agreement, pursuant to which the Respondent undertook to pay
the Claimant a total of EUR 244,360 net, broken down into two instalments of EUR 100,000
and EUR 144,360, respectively due on 15 September 2023 and 15 November 2023
(hereinafter: the Settlement Agreement).
3.
Pursuant to the Settlement Agreement, the Parties stipulated that in case of the
Respondent’s failure to pay any of the relevant instalments within the terms and conditions
above mentioned, the Claimant would become entitled to claim the agreed amount in full
and without the need for serving any prior notice. Furthermore, the Parties stipulated that
the Respondent would have to pay to the Player an annual interest of 10% on the total
amount which remained unpaid.
4.
On 19 September 2023, the Respondent made a payment to the Claimant in the amount
of EUR 50,000.
5.
By correspondence dated 7 November 2023, the Claimant declared that the Respondent
had failed to comply with the terms of the Settlement Agreement and put the Respondent
in default of payment of EUR 194,360 as outstanding remuneration plus the relevant
interest.
II. Proceedings before FIFA
6.
On 21 November 2023, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
7.
According to the Claimant, the Respondent failed to comply with the Settlement Agreement
by not paying the first instalment within the relevant due date, i.e., 15 September 2023,
hence pursuant to the acceleration clause contained in the said agreement, the
Respondent would become liable to pay all the remaining sums thereto stipulated.
8.
In this context, the Claimant acknowledged having received a payment of EUR 50,000 from
the Respondent on 19 September 2023.
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REF. FPSD-12771
9.
Furthermore, the Claimant demanded FIFA to impose on the Respondent a default interest
of 10% per annum as per clause 2 of the Settlement Agreement, running from the due date
of the first instalment as this was not paid on time.
10. Accordingly, the Claimant’s request for reliefs was to order the Respondent to the payment
of EUR 194,360 net as outstanding remuneration plus a 10% interest.
11. In its reply, the Respondent acknowledged its debt toward the Claimant and alleged having
suffered several financial difficulties due to the current financial crisis in Türkiye, worsened
by the earthquake that affect the Adana region.
12. Nevertheless, the Respondent argued having proven its good faith and will to adhere the
contractual terms by paying the sum of EUR 50,000 on 19 September 2023.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. 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 21 November 2023 and
submitted for decision on 8 February 2024. 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.
14. 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 (edition February 2024), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Paraguayan
player and a Turkish club.
15. 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 (February 2024 edition), and
considering that the present claim was lodged on 21 November 2023, the May 2023 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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REF. FPSD-12771
16. 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
17. 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.
i. Main legal discussion and considerations
18. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the Respondent alleged having suffered financial
difficulties which eventually impeded it to comply with its obligations to the Claimant.
19. In particular, the Chamber observed that according to the Respondent, the seismic events
occurred in Türkiye during the month of February 2023 have severely impacted on its
financial resources, thus preventing the Respondent from complying with its obligations in
timely manner. Yet, the Chamber outlined that the Settlement Agreement was concluded
after such earthquake, and therefore the position of the Respondent could not be followed
for it was not a new circumstance to the parties.
20. With the above in mind, the Chamber determined that the Respondent did not dispute
having failed to pay the amounts herein claimed, thus accepting the substantial allegations
of the Claimant.
21. In particular, the Chamber observed that by failing to comply in due time with the payment
of the first instalment stipulated under the Settlement Agreement, the Respondent
triggered the relevant acceleration clause under art. 2 of the said document, hence it
became immediately liable for the payment of all the remaining instalments.
22. Furthermore, the Chamber noted that pursuant to the aforementioned provision, the
Respondent undertook to pay a further 10% per annum as default interest over the unpaid
amounts running from their original due date. In the Chamber’s view, the mentioned rate
does not appear disproportionate in respect to the relevant outstanding amount, nor it
results incongruent with the standard practice of the DRC.
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REF. FPSD-12771
23. With the foregoing in mind, the Chamber wished to emphasize that in the case at hand the
Respondent bore the burden of proving that it indeed complied with the financial terms of
the contract concluded between the parties or that it had a valid cause for not respecting
those terms. Nonetheless, absent such evidence and any reasonable justification by the
Respondent for not having complied with the terms of the contract, the Chamber decided
that its position could not be upheld as it failed to sustain its burden of proof.
24. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the net amount
of EUR 194,360 as outstanding remuneration.
25. Lastly, taking into consideration the words of the Settlement Agreement and in line with
the Claimant’s request, the Chamber decided to award the Claimant interest on the
outstanding amount at the rate of 10% p.a. as of 16 September 2023 until the date of
effective payment.
ii. Compliance with monetary decisions
26. 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.
27. 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.
28. 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.
29. 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.
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REF. FPSD-12771
30. 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
31. 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.
32. 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.
33. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-12771
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jorge Enmanuel Morel Barrios, is accepted.
2.
The Respondent, Yukatel Adana Demirspor A.S., must pay to the Claimant EUR 194,360 net
as outstanding remuneration plus 10% interest p.a. as from 16 September 2023 until the
date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-12771
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
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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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