Labour Disputes
Texto da decisão
REF FPSD-3065
Decision of the
Dispute Resolution Chamber
passed on 08 October 2021
regarding an employment-related dispute concerning the player Sorin
Bogdan Stancu
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairperson
Tomislav Kasalo (Croatia), Member
Daan de Jong (the Netherlands), Member
CLAIMANT:
Sorin Bogdan Stancu, Romania
Represented by Rıza Köklü
RESPONDENT:
Gençlerbirligi Spor Kulübü Dernegi, Turkey
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REF FPSD-3065
I.
Facts of the case
1.
On 22 January 2019, the Romanian player, Mr Sorin Bogdan Stancu (hereinafter: the player
or the Claimant) and the Turkish club, Gençlerbirligi Spor Kulübü Dernegi (hereinafter: the
club or the Respondent) signed an employment contract valid as from the date of signature
until 31 May 2020 (hereinafter: the first employment contract).
2.
On 27 May 2020, the same parties signed another employment contract valid as from 1 June
2020 until 31 May 2021 (hereinafter: the second employment contract).
3.
In accordance with clause 3 of the second employment contract, the club undertook to pay
the player, inter alia, the following amounts:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
4.
EUR 50,000 net as sign-on fee on 31 August 2019;
EUR 150,000 net as advanced payment on 31 August 2020;
EUR 45,000 net on 30 September 2020;
EUR 45,000 net on 31 October 2020;
EUR 45,000 net on 30 November 2020;
EUR 45,000 net on 31 December 2020;
EUR 45,000 net on 31 January 2021;
EUR 45,000 net on 28 February 2021;
EUR 45,000 net on 31 March 2021;
EUR 45,000 net on 30 April 2021;
EUR 45,000 net on 31 May 2020; and
EUR 45,000 net on 30 June 2020.
In addition, clause 3 of the second employment contract also stipulated the following:
“D - The player shall be paid 15.000 Euro (NET) on 31.12.2020 for his accommodation
expenses.
E - If the player plays in at least 20 official league matches during the 2020/2021 season, he
shall be entitled to a bonus of 100.000 Euro (NET)”.
II. Proceedings before FIFA
5.
On 16 July 2021, the player filed the claim at hand before FIFA.
6.
According to the player, the club fulfilled its obligations arising from the first employment
contract, however failed to pay a significant part of his remuneration under the second
employment contract.
7.
To this extent, the player requested to be awarded the total amount of EUR 340,000 net as
outstanding remuneration, broken down as follows:
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a. EUR 45,000 net as outstanding salary, plus 5% interest as from 28 February 2021;
b. EUR 45,000 net as outstanding salary, plus 5% interest as from 31 March 2021;
c. EUR 45,000 net as outstanding salary, plus 5% interest as from 30 April 2021;
d. EUR 45,000 net as outstanding salary, plus 5% interest as from 31 May 2021;
e. EUR 45,000 net as outstanding salary, plus 5% interest as from 30 June 2021;
f. EUR 15,000 net as accommodation payment plus 5% interest as from 31 December
2020; and
g. EUR 100,000 net as match bonus payment plus 5% interest as from 27 April 2021.
8.
In his reply, the club wrote, inter alia, the following:
“6. [The club] recently had a change of its President, Executive Board and almost the totality
of its personnel.
7. The recent change, alongside with the […] detrimental effects of the current covid 19
pandemic, resulted in a significant financial and administrative restraint for the
Respondent.
8. Consequently, the Respondent is unavailable to determine its true debt against the
Claimant at the moment.
9. Please note that [the club] is currently examining the records of the previous
management and once the examination is complete, it shall pay its true debt against the
Claimant”.
9.
Based on the foregoing, the club requested the player’s claim to be entirely rejected.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
10. 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 16 July 2021 and submitted for decision on
8 October 2021. 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.
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REF FPSD-3065
11. 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 (August 2021 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 Romanian player
and a Turkish club.
12. 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 Player (August 2021 edition), and
considering that the present claim was lodged on 16 July 2021, the February 2021 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
13. 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
14. 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
15. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the player lodged the claim at hand seeking payment of part
of his remuneration under the second employment contract.
16. On the other hand, the Chamber was also observant of the club’s argumentation regarding
the change of its board of representatives and the impacts of the COVID-19 pandemic.
17. In this context, the DRC firstly wished to recall its well-established jurisprudence according to
which administrative proceedings are not considered a valid reason not to perform
contractual obligations. The members of the Chamber further mentioned that the internal
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REF FPSD-3065
framework of one of the parties to a contract cannot have legal effect on the validity or in
the execution of the contract itself.
18. Consequently, the DRC was firm to determine that the club’s allegations in this regard could
not be upheld.
19. In continuation, the Chamber turned its attention to the club’s position regarding the
pandemic. By doing so, the DRC highlighted that FIFA issued a set of guidelines, the COVID19 Guidelines, which aim at providing appropriate guidance and recommendations to
member associations and their stakeholders, to both mitigate the consequences of
disruptions caused by COVID-19 and ensure that any response is harmonised in the common
interest. Moreover, on 11 June 2020, FIFA has issued an additional document, referred to as
FIFA COVID-19 FAQ, which provides clarifications on the most relevant questions in
connection with the regulatory consequences of the COVID-19 outbreak and identifies
solutions for new regulatory matters.
20. To this extent, the Chamber observed that the FIFA COVID FAQ, in its question no. 1,
establishes that the Bureau of the FIFA Council did not determine that the COVID-19 outbreak
was a force majeure situation in any specific country or territory, or that any specific
employment or transfer agreement was impacted by the concept of force majeure; rather, it
provides that whether or not a force majeure situation (or its equivalent) exists in the country
or territory is a matter of law and fact, which must be addressed on a case-by-case basis visà-vis the relevant laws that are applicable to any specific employment or transfer agreement.
21. Likewise, the DRC outlined that the club did not file together with its reply any documentation
pertaining to the question of the COVID-19 pandemic and the concept of force majeure.
Consequently, the Chamber determined that the club failed to meet its burden of proof in
accordance with the aforementioned art. 13 par. 5 of the Procedural Rules.
22. On account of the abovementioned considerations, the members of the DRC unanimously
concluded that the club’s argumentation regarding the non-payment of the player’s
outstanding remuneration had to be rejected. At this point, the Chamber also took due
consideration of the fact that the quantum sought by the player remained uncontested by
the club.
23. Therefore, the DRC was of the opinion that said amounts should be awarded as claimed in
accordance with the general legal principle of pacta sunt servanda.
24. Taking into consideration the player’s requests for relief and in line with its long-standing
jurisprudence, the Chamber also decided to award him 5% interest p.a. on the outstanding
amounts as from one day after the date when each instalment should have been paid, until
the date of effective payment.
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25. For the sake of completeness, the DRC found it noteworthy that the player’s claim as to the
match bonus: (i) derived from a clear reference in the second employment contract; (ii) was
supported by documentary evidence; and (iii) remained uncontested by the club.
26. Consequently, the Chamber ruled that the player should be entitled to the amounts sought.
Nevertheless, since the due date of this specific amount was not stipulated in the second
employment contract, the DRC established that the interest of 5% p.a. should arise as from
the expiry date of the second employment contract (i.e. 31 May 2021).
ii. Compliance with monetary decisions
27. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
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.
28. 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.
29. Therefore, bearing in mind the above, the DRC decided that the club must pay the full amount
due (including all applicable interest) to the player within 45 days of notification of the
decision, failing which, at the request of the player, 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 club in accordance with art.
24bis par. 2, 4, and 7 of the Regulations.
30. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
31. 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. 24bis par. 8 of
the Regulations.
d. Costs
32. 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.
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33. 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.
34. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Sorin Bogdan Stancu, is partially accepted.
2.
The Respondent, Gençlerbirligi Spor Kulübü Dernegi, has to pay to the Claimant, the following
amounts:
-
EUR 45,000 net as outstanding remuneration plus 5% interest p.a. as from 1 March 2021
until the date of effective payment;
EUR 45,000 net as outstanding remuneration plus 5% interest p.a. as from 1 April 2021
until the date of effective payment;
EUR 45,000 net as outstanding remuneration plus 5% interest p.a. as from 1 May 2021
until the date of effective payment;
EUR 45,000 net as outstanding remuneration plus 5% interest p.a. as from 1 June 2021
until the date of effective payment;
EUR 45,000 net as outstanding remuneration plus 5% interest p.a. as from 1 July 2021
until the date of effective payment;
EUR 15,000 net as outstanding remuneration plus 5% interest p.a. as from 1 January 2021
until the date of effective payment; and
EUR 100,000 net as outstanding remuneration plus 5% interest p.a. as from 31 May 2021
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. 24bis 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 the ban shall
be of 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.
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6. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter 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
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
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