Labour Disputes
Texto da decisão
REF. FPSD-14995
Decision of the
Dispute Resolution Chamber
passed on 21 November 2024
regarding an employment-related dispute concerning the player Marc Bartra
Aregall
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Andre DOS SANTOS MEGALE (Brazil), Member
Khadija TIMERA (Senegal), Member
CLAIMANT:
Marc Bartra Aregall, Spain
Represented by Ivan Bykovskiy
RESPONDENT:
Trabzonspor Futbol, Türkiye
Represented by Duygu Yaşar
pg. 2
REF. FPSD-14995
I. Facts of the case
1.
The parties to this dispute are:
•
the Spanish player Marc Bartra Aregall (hereinafter: the Player or the Claimant); and
•
the Turkish club Trabzonspor Futbol (hereinafter: the Club or the Respondent),
affiliated to the Turkish Football Federation (TFF).
2.
The Player and the Club are hereinafter jointly referred to as the Parties.
3.
On 15 August 2022, entered into an employment contract (hereinafter: the Employment
Contract) valid as from the signing date until 31 May 2025.
4.
Clause V of the Employment Contract reads, inter alia, as follows:
“V - REMUNERATION, BONUSES AND PAYMENT METHOD
The Club Is obliged to pay the amounts as written below to the Player in return of his
services subject to this Agreement, all payments indicated in the Agreement are to be
considered as "NET" payments defined as all amounts are net of any and all kind of
personal taxes including but not limited to income tax, withholding tax, social security
premiums, stamp duty or other personal tax in Turkey (hereinafter referred to as ‘NET’).
The Club shall bear the sole obligation to pay to the Player all amounts such as salaries
and bonus payments NET. Therefore, the Club irrevocably agrees and accepts to pay the
Income tax of the Player arising for ail payments to be made to the Player in this
Agreement on behalf of the Player to the relevant Turkish tax authorities.
The Club shall provide the Player at the end of each season and during which the present
Agreement shall be into force with an official tax certificate, drafted in English, duly
stamped and apostilled by the relevant tax authority. The Player is obliged to mandate
the officials of the Club to obtain such certificate on his behalf considering the fact that
the Club is not entitled to make the said request before the state institutions without the
consent of the Player.
The Club irrevocably agrees, declares and undertakes that if the Club fails to pay any of
the relevant taxes whatsoever relating to the Player on the relevant due dates in part and
/ or in full In Turkey, the Club shall indemnify the Player and pay all the taxes, penalties,
interests and / or additional obligations under any name whatsoever in addition to the
amounts determined below, immediately to the Turkish tax authority or the Player (as
may be requested by the Player) following the first written request of the Player”.
5.
On 11 July 2023, the Parties signed a termination agreement (hereinafter: the Termination
Agreement).
pg. 3
REF. FPSD-14995
6.
Clauses 2 and 3 of the Termination Agreement read as follows:
“2. The parties are released from all their contractual obligations to one other, with the
exception of the Club’s obligation to pay the Player a net sum of EUR 2.686.500 (Two
million six hundred eighty six thousand and five hundred euros) according to the
payment schedule outlined below.
500.000.00.-EURO by no later than 31.07.2023
500.000.00.-EURO by no later than 31.08.2023
281.000.00.-EURO by no later than 01.10.2023
281.000 00.-EURO by no later than 31.10.2023
281.000.00.-EURO by no later than 30.11.2023
281.000.00 -EURO by no later than 02.01.2024
281.000 00.-EURO by no later than 31.01.2024
281.500.00.-EURO by no later than 01.03.2024
3. In case [the Club] not pay any payment due to the Player under this agreement in due
time (due dates regulated above) [the Club] is obliged to pay 10% (p.a.) interest on nonpaid amount to the Player to be calculated from the due date of the receivable”.
7.
Clauses 7 and 8 of the Termination Agreement read as follows:
“7. Following the signature of this Agreement, any rights and obligations arising out of or
in connection with the Contract or any other agreement signed between the Parties shall
immediately cease.
8. This Agreement contains the entire agreement between the Parties and there are no
oral or written inducements, promises, or agreements except as contained herein. Any or
all prior agreements or contracts or notifications are void upon the execution of this
Agreement”.
II. Proceedings before FIFA
8.
On 19 June 2024, the Player filed the claim at hand before FIFA. A summary of the Parties’
position is detailed below.
a. Claim of the Player
9.
In his claim, the Player pointed out that both the Employment Contract and the
Termination Agreement provided for remuneration net of taxes in Türkiye. The Player
submitted copies of his tax returns for the years 2022, 2023 and 2024, and stated that he
had made the following payments to the relevant tax authorities:
pg. 4
REF. FPSD-14995
Payment date
Amount paid in Turkish Liras (TRY)
Amount in Euros (EUR)
31.03.2023
2,481,485.86
118,605.84
26.07.2023
2,481,190.96
83,377.44
10.05.2024
4,700,595.72
165,181.14
10. The Player relied on the jurisprudence of the Court of Arbitration for Sport (CAS) and Swiss
law to conclude that the Club should be obliged to reimburse him the amounts paid, plus
interest from the respective due dates, as follows:
“1) 118.605,84 EUR as of April 1, 2023, until the effective date of the payment;
2) 83.377,44 EUR as of July 27,2023, until the effective date of the payment;
3) 135.181,14 EUR as of May 11, 2024, until the effective date of the payment”.
11. The Player’s request for relief was as follows:
“On these grounds, the Claimant hereby respectfully ask that the Respondent be
condemned to pay the Claimant EUR 337.164,42 (three hundred thirty-seven
thousand one hundred sixty-four Euro/42) plus interest of 5% p.a.as detailed above
in par. 28 of this Claim, and that the FIFA general secretariat issues a proposal in this
respect”.
b. Reply of the Club
12. On 10 July 2024, the Club filed its response to the Player’s claim.
13. The Club first stated that the Termination Agreement superseded the Employment
Contract, which was the only contract to be considered in this case. The Club also pointed
out that it had paid the settlement amount in full, without any deductions or withholdings,
and therefore had no further obligations.
14. According to the Club, the Termination Agreement, unlike the Employment Contract, does
not contain a definition of the term “net”, let alone provide for the additional obligation of
the Club to assume the payment of the personal income taxes on behalf of the Player.
15. The Club also pointed out that the Player did not contact it until 23 May 2024, although the
first instalments had already been paid a long time before that date.
16. The Club requested the following relief:
“In light of the above-mentioned facts, the Respondent respectfully requests the FIFA
Dispute Resolution Chamber to rule as follows:
- The Respondent does not owe any money to the Claimant, as a result the present claim
is rejected and closed accordingly”.
pg. 5
REF. FPSD-14995
c. Rejoinder of the Player
17. On 17 July 2024, the Player submitted his rejoinder in this matter.
18. The Player first pointed out that, although he had submitted his tax returns for the entire
period of his employment relationship with the Club, the Club had not provided any proof
that it had paid any taxes on his behalf to the competent authorities.
19. He also claimed that the signing of the Termination Agreement did not affect the Club’s
obligation to reimburse the relevant taxes. On the contrary, the Club stated that this
obligation was annual and that the Termination Agreement did not relieve the Club of its
obligation to pay the taxes for the period during which the Player was still employed.
20. The Player referred to CAS jurisprudence regarding the interpretation of contracts and tax
issues and reiterated his position that he was entitled to a refund of the amounts paid.
21. The Player further stated that his claim was submitted within the two-year prescriptive
period set out in the FIFA regulations and that the fact that he had not previously raised
the issue was therefore irrelevant.
22. Finally, the Player reiterated his petitum as established in the first submission.
d. Final comments of the Club
23. On 29 July 2024, the Club submitted its final comments on the matter, contesting the
Player’s position as follows:
•
the Player has failed to prove that the Club’s tax liability continued after the signing
of the Termination Agreement;
•
the Termination Agreement contained a financial release in respect of amounts other
than those already been paid by the Club;
•
the CAS jurisprudence cited by the Player contained differences with respect to the
present case – in particular because the Termination Agreement did not contain a
definition of the term “net” and the Employment Contract had already been
superseded.
24. Based on all the above, the Club also maintained its previous statement that the Player’s
claim should be dismissed.
pg. 6
REF. FPSD-14995
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
25. First of all, the Dispute Resolution Chamber (hereinafter: the 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 19 June 2024 and submitted for decision on
21 November 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.
26. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (October 2024 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an Spanish player
and a Turkish club.
27. 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 (October2024 edition), and
considering that the present claim was lodged on 19 June 2024, the June 2024 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
28. 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
29. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
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REF. FPSD-14995
i. Main legal discussion and considerations
30. The Chamber then turned to the substance of the matter, noting that it concerned a claim
for reimbursement of taxes in connection with the Employment Contract and the
Termination Agreement.
31. The DRC noted that, on the one hand, the Player claimed to be entitled to EUR 337,164.42,
corresponding to the reimbursement of the taxes paid for the calendar years 2022, 2023,
and 2024, when he was still employed by the Club.
32. The Club, on the other hand, disputed his entitlement to any reimbursement vis-à-vis (i) the
assertion that the Employment Contract was superseded; and (ii) the unspecified wording
of the Termination Agreement in addition to the financial release contained therein.
33. The Chamber then acknowledged that its task was to determine whether the Player was in
fact entitled to a refund of his personal income tax.
34. As a starting point, the DRC stated that clause V of the Employment Contract does indeed
clearly and unambiguously establish that the Club was responsible for the payment of any
tax liabilities arising in connection therewith, including the Player’s personal income tax.
35. In contrast, the Chamber found that the Termination Agreement does not contain the same
provision and, contrary to the Player’s assertion, was also silent on the meaning of the term
“net” mentioned therein.
36. Consequently, the DRC acknowledged that the first question to be answered was whether
the Termination Agreement replaced the Employment Contract and, if so, whether the Club
had any residual liability for the payment of the taxes for the duration of the employment
relationship.
37. With the above in mind, the Chamber turned its attention to the wording of the Termination
Agreement and recalled that it provides, inter alia, that:
•
[Clause 2] “The Parties are released from all their contractual obligations to one other,
with the exception of the Club’s obligation to pay the Player a net sum of […]”;
•
[Clause 7] “Following the signature of this Agreement, any rights and obligations arising
out of or in connection with the Contract or any other agreement signed between the
Parties shall immediately cease”;
•
[Clause 8] “This Agreement contains the entire agreement between the Parties and there
are no oral or written inducements, promises, or agreements except as contained herein.
Any or all prior agreements or contracts or notifications are void upon the execution of
this Agreement”.
pg. 8
REF. FPSD-14995
38. In light of the foregoing, the DRC considered that the Parties not only once, but several
times, expressed in writing their intention to novate their obligations and to release each
other from any residual obligation arising out of the Employment Contract. The Chamber
pointed out that the Parties not only included the financial release from any further
obligations in addition to the settlement amount, but they also expressly stipulated that
the Termination Agreement should replace any further agreements and constitute their
“entire agreement” for all future obligations.
39. Consequently, the Chamber considered that the Termination Agreement replaced the
Employment Contract and thus, accepted the Club’s position that the content of clause V
of the Employment Contract was immaterial to the assessment of the present case and
that any analysis had to be based solely on the wording of the Termination Agreement.
40. In continuation, the Chamber noted that, out of the three instalments claimed by the
Player, at least the first instalment was already due at the time that the Parties signed the
Termination Agreement. The Chamber therefore found that, at the time of signing the
Termination Agreement, the Player was undoubtedly aware of this first payment and
nevertheless granted the Club a financial release in respect of any amounts other than the
settlement amount. The DRC found no evidence in the case file to suggest that this issue
was even the subject of negotiations at that time.
41. In the DRC’s view, any argument put forward by the Player regarding the interpretation of
the Termination Agreement and the true intention of the Parties was contradictory in
relation to the first instalment, given that (i) he was already aware of the tax liability
allegedly attributable to the Club and (ii) he nevertheless signed a document granting a
financial release from all obligations other than the settlement sum (venire contra factum
proprium).
42. The Chamber was therefore satisfied that the Player’s claim could not succeed in any event
in respect of the first refund claimed.
43. Although the majority of the Chamber considered that the financial release could also be
interpreted as covering future obligations i.e., as a novation of all financial obligations
(including tax payments) by way of article 2 of the Termination Agreement, the DRC also
found that this conclusion was not so straightforward.
44. In other words, even if the majority of the DRC already considered that a literal
interpretation of the Termination Agreement could support that the Parties had limited
their claims to the settlement amount, the Chamber still found it relevant that the
subsequent instalments had not yet fallen due at the time of the signing of the Termination
Agreement, hence meriting a deeper analysis.
pg. 9
REF. FPSD-14995
45. At this point, the Chamber decided to examine whether the Parties had in any way allowed
for a different interpretation that could possibly support the Player’s claim for the
reimbursement of the sums paid after the signing of the Termination Agreement.
46. In this regard, the DRC again recalled that the Termination Agreement made no reference
to the Club’s obligation to pay the Player’s personal income tax for the duration of the
Employment Contract. Similarly, the Termination Agreement was silent on the income tax
resulting from the settlement sum.
47. Notwithstanding the fact that the settlement amount was stated to be “net”, the majority
of the DRC was not convinced that this reference was sufficient to imply that all tax liabilities
would be assumed by the Club – including those that extrapolated to the Player’s personal
sphere (i.e., the personal income tax).
48. The Chamber noted that the Player referred to CAS jurisprudence in support of his position
– and alleged entitlement – to reimbursement. However, the DRC stressed that in the case
on which the Player based his argument (CAS 2023/A/10142) the Parties had not signed a
termination / settlement agreement. Furthermore, the core of the dispute concerned the
payment of taxes in another jurisdiction and the interpretation of the employment contract
which had been the basis of the dispute up to that point.
49. The DRC has taken into account the fact that the CAS award submitted by the Player refers
to a broader interpretation of the term “net” in a contract. However, the majority of the
Chamber also found that the present case was materially different from the case
considered by the Sole Arbitrator on that occasion.
50. In another respect, the DRC considered that the conclusions reached by CAS in CAS
2023/A/9438 were relevant to this case. That dispute involved a Congolese player and
another Turkish club and a contract that simply referred to “net”, without further
specification. In considering this scenario, the CAS panel determined, in essence, that an
experienced professional player “could not in good faith have expected that the term “net”
would automatically mean that he was to be reimbursed by the Club for any private payable
income tax originating from his contractual remuneration from the Club” (§96).
51. The Panel in CAS 2023/A/9438 further established that:
“101. In this case, the Parties are in agreement regarding the Club’s obligation to pay the
withholding tax regarding the Player without any deduction in the net amounts set out
in the Contract. However, they are in disagreement over the obligation to finally
pay/reimburse the personal income tax of the Player pursuant to Turkish tax rules
originating from the Player’s contractual remuneration from the Club.
102. Based on the facts of the case, and on the Parties’ submissions, the Panel finds
that it is up to the Player to discharge the burden of proof to establish that it was
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REF. FPSD-14995
agreed between the Parties that the Club should reimburse the Player for any
personal income tax payable by the Player and originating from the Player’s
contractual remuneration from the Club.
[...]
105. In addition to the above-mentioned considerations, the Panel further notes that it
finds that a deviation from the starting point regarding a party’s obligation to pay its
own taxes must be clear in order for the Panel to base a decision on it.
106. As such, the Panel notes that the Contract neither contains a definition of the
term “net”, nor contains any provision regarding a possible reimbursement by the
Club of any taxes or other expensed incurred by the Player and originating from
the employment relationship, even if this is the case in other contracts between
the Club and its players.
107.
And
even
if
the
Panel
appreciates
that
the
grammatical
understanding/interpretation of the term “net” in the world of football is generally to be
understood as “without any deduction” of taxes, charges and expenses, the Panel notes
that the term “net” is also applied in clause 3.22 of the Contract regarding the Player’s
“buy-out” in a manner where an understanding of the term meaning “without any
deduction” of taxes, charges and expenses does not make particular sense to the Panel,
which to some extent questions the Parties’ intentional use of the term in the Contract.
108. Based on the above, the Panel finds there is no sufficient basis for concluding that
the Parties agreed that the Club should in fact be responsible for reimbursing the Player
for the private income tax payable by the Player pursuant to the applicable Turkish tax
rules” (emphasis added by the Chamber).
52. The majority DRC considered that the same rationale should be applied to the present case
to the extent that the Player, when signing the Termination Agreement with the general
reference to “net”, could not legitimately expect that he would still be entitled to the
reimbursement of any kind of taxes resulting from his time in Türkiye.
53. Similarly, the Chamber found that the previous definition contained in the Employment
Contract and omitted from the Termination Agreement worked against the Player. By
including such a detailed reference to the previous contract, the DRC considered that the
Player was indeed aware of the tax implications of his remuneration, which were properly
addressed. Nevertheless, and for reasons that the Chamber could not foresee, the same
level of diligence was not applied to the Termination Agreement, creating a contractual
lacuna that could not be overcome by the DRC by referring to a previous agreement that
has already been superseded.
pg. 11
REF. FPSD-14995
54. Likewise, the Parties did not provide any other document that could support any “hidden
intentions” behind the final wording of the Termination Agreement, which the Chamber also
considered to have a different scope and object than the Employment Contract.
55. Based on all the above, the majority of the Chamber concluded the following:
•
The Termination Agreement effectively superseded the Employment Contract and it
provided for a final net amount to be paid by the Club to the Player;
•
The Termination Agreement also contained a financial release which expressly stated
that the Parties had no further obligations other than the payment of the settlement
amount. This release made no exception with respect to past or future tax liabilities.
Furthermore, the Termination Agreement appears to contain mutual concessions
between the Parties, the reciprocity of which was not disputed by the Player in any of
his submissions;
•
Even assuming – ad argumentandum tantum – that the tax refund was not
encompassed in the settlement amount, the Termination Agreement made no
reference to the Club’s obligation to reimburse the Player’s income tax;
•
The mere reference to the term “net” in the Termination Agreement was not sufficient
evidence to legally conclude that the intention of the Parties was in fact to make the
Club liable for all possible tax consequences in relation to the terminated
employment relationship; and
•
On the contrary, if the Parties had intended to apply such a broad interpretation to
the term “net”, they should have done so in writing, exactly as provided for in the
Employment Contract.
56. In light of the above, the majority of the Chamber decided that the Player’s claim be
rejected in its entirety.
d. Costs
57. 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.
58. 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.
59. Lastly, the DRC rejected any other requests for relief made by any of the Parties.
pg. 12
REF. FPSD-14995
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Marc Bartra Aregall, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-14995
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 – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 14