Labour Disputes
Texto da decisão
REF. FPSD-15282
Decision of the
Dispute Resolution Chamber
passed on 8 October 2024
regarding an employment-related dispute concerning the player Andrea
Bertolacci
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Peter LUKASEK (Slovakia), Member
Oleg ZADUBROVSKIY (Russia), Member
CLAIMANT:
Andrea Bertolacci, Italy
Represented by Riccardo Giacomin
RESPONDENT:
Fatih Karagümrük A.S., Türkiye
Represented by Sami Dinc
pg. 2
REF. FPSD-15282
I. Facts of the case
1.
On 28 December 2023, the Italian player (hereinafter, the “Claimant” or “Player”) and the
Turkish club Fatih Karagümrük A.S. (hereinafter, the “Respondent” or “Club”) concluded an
employment contract (hereinafter, the “Contract”), valid as from 1 January 2024 until 30
June 2024.
2.
Pursuant to the Contract, the Respondent undertook to pay the Claimant, inter alia, the
following remuneration:
“For 2023/2024 Football Season: 215.000,00-Euro net (Two Hundred Fifteen Thousand Euros)
140.000,00-Euro net (One Hundred and Forty Thousand Euros) of the abovementioned total
amount is to be paid to the Player by the Club as the monthly salary in 5 (five) equal instalments
(5 x 28.000,00-Euro net) between the period January 2024–May 2024. The monthly salaries are
to be paid on the last day of the relevant months.
- 75.000,00-Euro net (Seventy Five Thousand Euros) of the abovementioned total amount is to
be paid to the Player by the Club on 30.06.2024. This payment has been made in consideration
of the whole service period of the Player during the 2023/2024 football season and it shall be a
progressed amount at the end of the football season.
6.2-Living costs
2023/2024 football season: The Club shall pay to the Player in the amount of 17.000,00-Euro
net (Seventeen Thousand Euros) in total as living cost in 5 (five) equal installments (5 x 3.400,00Euro net) between the period January 2024–May 2024. The living cost installments are to be paid
on the last day of the relevant months.”
3.
On 3 July 2024 the Claimant sent a default notice to the Respondent stating that the
Respondent had only paid the Claimant a total of EUR 94,200 and citing the following
overdue remuneration for a total of EUR 137,800:
-
4.
EUR 28,000 for April 2024 salary
EUR 28,000 for May 2024 salary
EUR 3,400 for April 2024 living cost payment
EUR 3,400 for May 2024 living cost payment
EUR 75,000 “consideration for whole service period”, due 30 June 2024
In the default notice, the Claimant provided the Respondent 10 days to fulfil its financial
obligation.
pg. 3
REF. FPSD-15282
II. Proceedings before FIFA
5.
On 18 July 2024, the Claimant filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Position of the Claimant
6.
The Claimant asserted that the Club failed to remit the overdue payables following the
default notice.
7.
The Claimant requests the following relief:
“1. order the Respondent to pay the Claimant the outstanding amount of Euro 137,800.00 (one
hundred thirty-seven thousand eight hundred/00), due under the Employment Contract, as well
as the default interests at the rate of 5% thereon p.a. from the due date of the relevant
instalments until the date of effective payment;
2. order to the Respondent that, pursuant to Article 24, para. 2, 4, 5 and 7, FIFA RSTP, should the
Respondent fail to comply with a monetary decision of the FIFA DRC within 45 (forty-five) days
from notification of the decision, upon the Claimant’s request, the Respondent shall be banned
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 up to three entire and
consecutive registration periods;
3. order the Respondent to reimburse all the legal costs and fees sustained by the Claimant
equal to no less than Euro 5,000.00;
4. declare that any and all costs of the current proceeding shall be borne entirely by the
Respondent.”
b. Position of the Respondent
8.
In its reply, the Respondent claimed that the Claimant was entitled to a total of EUR 215,000
for the 2023/2024 sporting season.
9.
The Respondent argued that it made a total payment of EUR 96,999 over the course of such
sporting season, and therefore, the remaining amount due to the Claimant was EUR
118,001 rather than the EUR 137,800 claimed by the Claimant.
10. In support, the Respondent provided the following payment schedule, supported by
evidence of bank transfers remitted to the Claimant reflecting the same amounts and
dates:
pg. 4
REF. FPSD-15282
20.000,000-Euro
11.400,00-Euro
2.799,00-Euro
31.400,00-Euro
31.400,00-Euro
19.01.2024
30.01.2024
14.02.2024
18.04.2024
16.05.2024
11. The Respondent therefore rejected the Claimant’s position with respect to the amounts of
the overdue payables.
c. Additional Comments of the Claimant
12. The Claimant confirmed that he received the amounts cited by the Respondent but argued
that (1) in assessing the EUR 215,000 total obligation, the Respondent had failed to take
into account the living cost payments and the EUR 75,000 “consideration for whole payment
services”; and (2) the EUR 2,799 payment was a “spontaneous gesture for the victory” of a
match played on 10 February 2024.
13. Further with regard to the EUR 2,799 payment, the Claimant argued that his teammates
received similar payments, the varying amounts being on account of being ““parameterized
to, among others, the relevant players’ contribution to the match”, and provided accompanying
records of payments in similar amounts to two other players made on the same pay date,
14 February 2024.
pg. 5
REF. FPSD-15282
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. 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 18 July 2024 and submitted for decision on
08 October 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.
15. 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 (June 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 Italian player
and a Turkish club.
16. 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 (June 2024 edition), and
considering that the present claim was lodged on 18 July 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
17. 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
18. 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.
pg. 6
REF. FPSD-15282
i. Main legal discussion and considerations
19. The Chamber then moved to the substance of the matter, and took note of the fact that
the parties do not dispute that a valid employment agreement existed between the parties,
of which a portion of the remuneration remained outstanding.
20. In this context, the Chamber acknowledged that it its task was to determine which
remuneration was still owed under the Contract.
21. In particular, the Chamber noted that the Claimant claimed EUR 137,800 whereas the Club
only confirmed owing EUR 118,001. Therefore, the only dispute between the parties
concerns the balance of EUR 19,799.
22. As a preliminary matter, the Chamber recalled that the Contract indeed entitled the Player,
as the Claimant alleged, to a total remuneration of EUR 232,000, rather than a total of EUR
215,000 as claimed by the Respondent. Further, the Chamber noted that the Respondent
did not provide any explanation as to why there would only be a total of EUR 215,000 owed
when the Contract specified otherwise.
23. For EUR 2,799 of the EUR 19,799 in dispute, the Chamber remarked that the Parties did not
disagree that the above EUR 2,799 were remitted over the course of the 2023/2024 sporting
season; however, the Claimant argued such amount was not paid for salaries but rather as
a spontaneous gift by the Club for a match on 2 October, and therefore should not be
credited against the Club’s obligations to make the salary payments.
24. The Chamber then highlighted that the Claimant acknowledged receipt of the payment of
EUR 2,799, and in the absence of contractual language that would match the foregoing
payment, the burden shifted to him to prove that the payment did not fulfill the salary
obligation under the Contract.
25. The Chamber recalled that the Claimant indeed showed that two similar payments were
made to other players on the same date, and acknowledged that the payment was made
on 14 February 2024, only four days following the date of the match of 10 February 2024,
which indicated possible nexus between the triggering event and the payment. However,
the Chamber determined that this evidence, along with the snapshot of the players’ match
records (which did not indicate one way or another the individual players’ achievement in
said match) did not in and of itself seem sufficient to contradict the fact that the Club
fulfilled a payment obligation under the Contract.
26. The foregoing notwithstanding, the Chamber proceeded to examine the remaining
evidence: The payment records submitted by the Respondent did not specify whether the
payment was made for salaries but state only “PAYMENT PURSUANT TO THE RECEIVABLES.”
pg. 7
REF. FPSD-15282
27. In continuation, reviewing the payment schedule of the Respondent, the Chamber
determined that there was a readily discernible match for four of the five payments: Two
of the payments were EUR 31,400 each, with the payments of 19 January 2024 and 30
January 2024 adding up to EUR 31,400. The Chamber determined that those salaries
represented the monthly EUR 28,000 salary and monthly EUR 3,400 living cost, with the
EUR 2,799 appearing as an outlier and not corresponding to any payments under the
Contract.
28. The Chamber found that (i) the payment record of EUR 2,799 remitted did not specify that
it was for salary payments, (ii) the payment seemed to be the only one that did not fit within
the salary scheme set forth in the Contract; and (iii) the payment followed close in time to
the match for which the alleged spontaneous victory payment was made.
29. Therefore, considering all the elements and documents on file, the Chamber determined
the Claimant was able to sufficiently establish that the Respondent’s evidence for
additional payment of EUR 2,799 covered a payment other than its salary obligations under
the Contract and concluded that such payment would not be credited against the
Respondent’s debt for overdue payables.
ii. Consequences
30. Having stated the above, the Chamber concluded that the outstanding remuneration after
the end of the Contract, coupled with the specific requests for relief of the player, are
equivalent to a total of EUR 137,800:
-
EUR 28,000 for April 2024 salary
EUR 28,000 for May 2024 salary
EUR 3,400 for April 2024 living cost payment
EUR 3,400 for May 2024 living cost payment
EUR 75,000 “consideration for whole service period”
31. 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
aforementioned amounts.
32. 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 the day following each respective due date
until the date of effective payment.
iii.
Art. 12bis of the Regulations
pg. 8
REF. FPSD-15282
33. Having established the above, the Chamber referred to art. 12bis par. 2 of the Regulations,
which stipulates that any club found to have delayed a due payment for more than 30 days
without a prima facie contractual basis may be sanctioned in accordance with art. 12bis par.
4 of the Regulations.
34. To this end, the Chamber confirmed that the player put the club in default of payment of
the amounts sought, of which EUR 62,800 had fallen due more than 30 days before, and
granted the club a 10-day deadline to cure such breach of contract.
35. Accordingly, the Chamber confirmed that the club had delayed a due payment without a
prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
36. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the club. On account of the above and bearing in mind
that the Club was a repeat offender, the Chamber decided to impose a fine on the club in
accordance with art. 12bis par. 4 lit. c) of the Regulations.
37. Furthermore, the Chamber regarded a fine amounting to USD 18,750 as appropriate and
hence decided to impose said fine on the Club.
38. In this connection, the Chamber highlighted that a repeated offence will be considered as
an aggravating circumstance and lead to a more severe penalty in accordance with art. 12bis
par. 6 of the Regulations.
iv. Compliance with monetary decisions
39. 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.
40. 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.
41. 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
pg. 9
REF. FPSD-15282
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.
42. 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.
43. 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
44. 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.
45. 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.
46. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 10
REF. FPSD-15282
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Andrea Bertolacci, is partially accepted.
2.
The Respondent, Fatih Karagümrük A.S., must pay to the Claimant the following amount(s):
- EUR 31,400 as outstanding remuneration plus 5% interest p.a. as from 1 May 2024 until
the date of effective payment;
- EUR 31,400 as outstanding remuneration plus 5% interest p.a. as from 1 June 2024 until
the date of effective payment;
- EUR 75,000 as outstanding remuneration plus 5% interest p.a. as from 1 July 2024 until
the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A fine in the amount of USD 18,750 is imposed on the Respondent, which must be paid
to FIFA within 30 days of notification of this decision. Such fine must be paid to the
following bank account with a clear reference to the case FPSD-15282:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230
IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
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.
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.
pg. 11
REF. FPSD-15282
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 12
REF. FPSD-15282
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. 13