Labour Disputes
Texto da decisão
REF. FPSD-12915
Decision of the
Dispute Resolution Chamber
passed on 4 April 2024
regarding an employment-related dispute concerning
the player Fabio Borini
BY:
Frans DE WEGER (The Netherlands), Chairperson
Peter LUKASEK (Slovakia), member
Dana MOHAMED AL-NOAIMI (Qatar), member
CLAIMANT:
Fabio Borini, Italy
Represented by Stefano La Porta
RESPONDENT:
Vavacars Fatih Karagumruk, Türkiye
Represented by Sami Dinç
pg. 2
REF. FPSD-12915
I. Facts of the case
1.
On 18 August 2021, the Italian player Fabio Borini (hereinafter the Claimant) and the Turkish
club Vavacars Fatih Karagumruk (hereinafter the Respondent) concluded an employment
(hereinafter the Employment Agreement), valid as from 21 June 2022 until 31 May 2023.
2.
In accordance with Clause 7.1 and 7.2 of the Employment Agreement, the Claimant and the
Respondent (jointly referred to as the parties) mutually agreed upon the following financial
remuneration:
“A net total of 700.000,00-Euro (Seven Thousand Euro) is to be paid to the Player by the Club
as the monthly salary in 12 (twelve) equal installments (12 x 58.333,33-Euro) between the
period July 2022 - June 2023. The monthly salaries are to be paid the last day of the relevant
months.
- 200.000,00-Euro (Two Hundred Thousand Euro) shall be paid to the Player on 30.06.2023
as guarantee payment.
(…)
The Club shall pay to the Player in the amount of 12.000,00-Euro (Twelve Thousand Euros) in
total as living cost in 12 (twelve) equal installments (12 x 1.000,00-Euro) between the period
September 2022 -August 2023. The living cost installments are to be paid the last day of the
relevant months.”
3.
In accordance with Clause 7 of the Employment Agreement, the parties stipulated the
following:
“(…) all payments indicated in this present contract are agreed that are "net" payments. For
the avoidance of the doubt, the Club shall be responsible of the taxes and deductions in
accordance with the Turkish Tax legislation and the Club shall not be responsible for any
other obligations due to the - including but not limited - additional tax duties, social
contributions and/or levies related to the other countries' legislations.”
II. Proceedings before FIFA
4.
On 4 December 2023, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
5.
The requests for relief of the Claimant were the following:
“The Claimant respectfully requests the DRC to accept this statement of claim and order
the Respondent to pay the Claimant the sum of € 829,125.34, plus 5% interest per annum
starting from the due dates of each instalment unpaid until the date of payment.“
pg. 3
REF. FPSD-12915
6.
The Claimant based its claim on the legal principle pacta sunt servanda and argued that “had
the Respondent duly paid the salary due to the Player (and the related taxes), the Player would
have received the net amounts provided under the Contract without any further liability towards
tax authorities. On the contrary, following the end of his contract with the Respondent, the Player
moved to Italy, where he domestically in relation to any income that he will be receiving
(including the Outstanding Amount, earned while he was living in Italy).”
7.
In this regard, the Claimant provided an expert report “to determine where and when he
bears the obligation to pay taxes related to the collection of the Outstanding Amount and,
consequently, to quantify the exact gross amount to be claimed before FIFA in order to benefit
from the very same net salary that was agreed with the Respondent under the Contract.”
8.
Within the tax report, the Claimant allegedly provided an accurate calculation of the gross
amount corresponding to the outstanding amount in accordance with Italian legislation.
9.
Based on the above, the Claimant requested a total amount of EUR 829,125.34:
b. Position of the Respondent
10. The Respondent rejected the Claim, arguing that it paid the Claimant “1.719.999,88-Euro
with regards to employment contract. In this context, taking into consideration of the annexed
payment receipts, the allegations of the Claimant do not reflect the truth.”
11. Regarding the taxes in Italy, the Respondent argued that it “is responsible to pay to the Player
only the net amounts stipulated in the Contract. As your honorable Chamber is clearly aware
that the payment obligation of the Respondent in regards to the taxes is towards the Turkish tax
authorities, not to the Player.”
12. Pointing to Clause 7 of the Employment Agreement, the Respondent highlighted that “the
Club shall not be responsible for any other obligations due to the -including but not limited additional tax duties, social contributions and/or levies related to the other countries'
legislations.”
13. The Respondent argued that “the relevant stoppage tax in relation with the net amounts has
to be paid by the Club to the Turkish Tax Authorities in accordance with the Turkish Tax
pg. 4
REF. FPSD-12915
Legislation. But, naturally, if the Claimant declares his income tax to the Turkish Tax Authorities,
the obligation of the income tax payment belongs to the Claimant in accordance with the
principle of individual tax responsibility and also in accordance with the Turkish Tax Legislation.
In any case, the Respondent shall not be liable from the tax obligation of the Claimant which
may be occurred outside of Türkiye in any way.”
14. In this respect, the Respondent adduced that the “Tax Opinion" which was submitted by the
Claimant with its statement of claim are extremely wrong and inapplicable to this dispute.
Because, in the relevant document, the gross amount has been calculated pursuant to the Italian
Tax Code.”
c. Replica
15. The Claimant firstly referred to the proofs of payment provided by the Respondent and
argued that the latter “did not provide any clarification as to what debts such payments were
intended to settle, nor what, in the Respondent's opinion, would be now the amount due to the
Claimant.”
16. In particular, the Claimant purported that:
“most of the payments referred to by the Respondent (notably, all those payment receipts
from 5 February 2021 to 29 April 2022, see pages 19-44 of the Respondent's annex l) do not
refer to the current contentious matter. In fact, they do not pertain to the Contract, which was
valid for the sporting season 2022/2023, but rather to the (different) contract between the
parties valid for the season 2021/2022;
all others (i.e. the receipts actually related to the Contract, notably, all those issued from July
2022 onwards, see pages 1-18 of the Respondent's annex 1), refer to payments that are not
the subject-matter of this claim, as the Player admits having received them.”
17. In this regard, the Claimant clarified that the requests the following payments:
“four monthly salaries from March to June 2023 (i.e. net € 58,333.33 x 4 = € 233,333.32);
the lump-sum of € 200,000 net, which fell due on 30 June 2023;
the monthly instalments related to the "living costs" from November 2022 to August 2023
(i.e. net € 1,000 x 10 = € 10,000).
18. The Claimant further provided for the following break-down of his claim:
a. “the payment receipt of € 346,909.08 dated 6 July 2022 (pages 1-2 of the Respondent's
annex l) pertains to the balance of the outstanding amounts owed to the Player by the
Club for the sporting season 2021/2022. Therefore, it has nothing to do with these
proceedings;
b. the overall amount due to the Player under the Contract was € 912,000 net, as correctly
acknowledged by the Respondent (see paragraph 2 of its reply brief);
pg. 5
REF. FPSD-12915
c. the payment receipts in pages 3-18 of the Respondent's annex 1 reveal that the Club paid
the Player only € 468,666.64 under the Contract, which is the sum of the following eight
monthly salaries:
•
•
•
•
•
•
•
•
€ 58,333.33 paid on 31.08.2022 (pages 3-4 of the Respondent's annex 1);
€ 59,333.33 paid on 29.09.2022 (pages 5-6 of the Respondent's annex 1);
€ 59,333.33 paid on 31.10.2022 (pages 7-8 of the Respondent's annex 1);
€ 58,333.33 paid on 1.12.2022 (pages 9-10 of the Respondent's annex 1);
€ 58,333.33 paid on 5.01.2023 (pages 11-12 of the Respondent's annex 1);
€ 58,333.33 paid on 28.02.2023 (pages 13-14 of the Respondent's annex 1);
€ 58,333.33 paid on 5.04.2023 (pages 15-16 of the Respondent's annex 1);
€ 58,333.33 paid on 11.05.2023 (pages 17-18 of the Respondent's annex 1);
d. the Outstanding Amount is the difference between the total amount due under the
Contract (i.e. € 912,000) and the sums actually paid by the Club (i.e. € 468,666.64), which
is € 443,333.322.”
19. Relating to the outstanding sum of EUR 443,333.32, the Claimant in addition submitted
evidence showing that this exact amount has been previously acknowledged by the
Respondent as debt.
20. Finally, the Claimant insisted on his previous calculation of taxes, arguing that he “is entitled
to receive fully the Outstanding Gross Amount, instead of the corresponding net, because extratax liabilities have arisen as a direct consequence of the Respondent's breach of the payment
terms under the Contract.”
d. Duplica
21. The Respondent recognized its debt of EUR 443,333.32, alleging to begin a settlement
negotiation regarding this sum.
22. Reiterating its previous argumentation linked to Clause 7 of the Employment Agreement,
arguing that “the payment obligation of the Respondent in regards to the taxes is towards the
Turkish tax authorities, not to the Player.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
23. 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 4 December 2023 and
submitted for decision on 4 April 2024. Taking into account the wording of art. 34 of the
pg. 6
REF. FPSD-12915
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.
24. 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 February 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.
25. 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 4 December 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
26. 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
27. 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
28. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that this is a claim of a player against a club concerning
overdue payables as per the Employment Agreement amounting to EUR 443,333.32 net, as
well as an additional amount of EUR 385,792.02 corresponding to alleged taxes over said
outstanding amount.
pg. 7
REF. FPSD-12915
29. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the latter had a valid justification for not
having complied with its financial obligations.
30. The Chamber first noted 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.
31. In this respect, the Chamber recalled that the Respondent acknowledged the debt of the
overdue payables as per the Employment Agreement amounting to EUR 443,333.32 net.
32. Turning its attention to the Claimant’s additional request concerning the alleged taxes over
the above-mentioned amounts, the Chamber remarked that since the respective overdue
payables of EUR 443,333.32 were not yet paid by the Respondent, any ruling on alleged
taxes is premature at this point, given that no tax liabilities have been incurred by the
Claimant.
33. Without entering into the merits concerning taxes, the DRC added that the Claimant needs
to incur the cost and suffer the harm before it can effectively seek relief before FIFA.
Consequently, the Chamber concluded that the request for taxes is premature.
34. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda,
which in essence means that agreements must be respected by the parties in good faith,
the Respondent is held liable to pay the Claimant the outstanding amounts deriving from
the contract concluded between the parties, namely EUR 443,333.32 net.
35. 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 4 December 2023 until the date of effective
payment.
ii. Compliance with monetary decisions
36. 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.
37. 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
pg. 8
REF. FPSD-12915
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
38. 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.
39. 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.
40. 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
41. 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.
42. 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.
43. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 9
REF. FPSD-12915
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the Claimant, Fabio Borini.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Vavacars Fatih Karagumruk, must pay to the Claimant the following
amount(s):
- EUR 443,333.32 net as outstanding amount plus 5% interest p.a. as from
4 December 2023 until the date of effective payment.
4.
The claim of the Claimant regarding taxes is premature.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 10
REF. FPSD-12915
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