DRC Overdue Payables
Texto da decisão
REF. FPSD-10215
Decision of the
Dispute Resolution Chamber
passed on 7 June 2023
regarding an employment-related dispute concerning
the player Zvonko Ceklić
BY:
Frans DE WEGER (Netherlands), Chairperson
André DOS SANTOS MEGALE (Brazil), member
Khadija TIMERA (Senegal), member
CLAIMANT:
Zvonko Ceklić, Montenegro
Represented by Mr Hrvoje Raić and Mr Ivan Ostojić
RESPONDENT:
FC Turan, Kazakhstan
pg. 2
REF. FPSD-10215
I. Facts of the case
1. On 22 July 2022, the player Zvonko Ceklić (the Claimant or the player) and Turan (the Respondent
or the club) concluded an employment contract valid as from the date of signature until 30
November 2022.
2. Following art. 3.1 of the contract, the player was entitled to a monthly salary of KZT (Kazakhstan
Tenge) 1,315,000, plus an additional 20% surcharge in the amount of KZT 263,000 “for work in the
ecological zone”, for a total salary of KZT 1,446,6000. Said payments are paid by “no later than the
second decade of the following month”.
3. The player’s signature in the contract appears as follows:
4. On the same date, the parties further signed another “supplementary agreement” (the first
supplementary agreement) establishing the following remuneration:
“3 .1 The employer sets the Employee a monthly basic salary m the amount of 1 819 000 (one million
eight hundred nineteen thousand) tenge, an additional 20% surcharge in the amount of 363 800 (…)
tenge is paid for work in the ecological zone. The total amount is 2 182 800 (…) tenge.”
5. Also on 22 July 2022, the parties concluded a supplementary agreement (the second
supplementary agreement), by means of which the player was entitled to a one-time bonus of
KZT 4,800,000.
6. The player’s signature in the second supplementary agreement is as follows:
7. On 3 April 2023, the player sent a default notice to the club, requesting the following amounts
and granted 10 days to remedy the default:
“one time bonus of net KZ 4,800,000.00, which matured on 22/7/2022,
and balance of August 2022 basic salary of net KZ 554,500.00, which matured on 30/9/2022, and
balance of September 2022 basic salary of net KZ 554,500.00, which matured on 31/10/2022, and
balance of October 2022 basic salary of net KZ 554,500.00, which matured on 30/11/2022, and
balance of November 2022 basic salary of net KZ 554,500.00, which matured on 31/12/2022;”
8. On 4 April 2023, the club replied and stated that it has not debts towards the player.
pg. 3
REF. FPSD-10215
II. Proceedings before FIFA
1. On 12 May 2023, the player lodged a claim before the FIFA Football Tribunal for outstanding
remuneration an requested the payment of KZT 7,018,000, plus 5% interest p.a. as from the due
dates detailed as follows:
- KZT 4,800,000, due on 22/7/2022, and
- KZT 554,500, due on 30/9/2022, and
- KZT 554,500, due on 31/10/2022, and
- KZT 554,500, due on 30/11/2022, and
- KZT 554,500, due on 31/12/2022;
2. In addition, the player requested “to condemn the Respondent to pay all relevant taxes, state
contributions and surcharges, on top of the above-mentioned net amounts”.
3. In its reply, the club stated that all salary payment obligations under the contract were fulfilled,
but acknowledged that it still had debts under supplementary agreements.
4. The club provided a statement signed by the player, dated 8 February 2023, stating the
following:
“I, professional football player Ceklic Zvonko, Passport № K05LB7067, confirm that I have received all
the amounts of wages due to me under the employment contract. At the moment I don’t have any
financial or material claim
against the Professional football club «Turan”
5. In his replica, the Claimant considered that the evidence provided by the club is “fabricated” as it
is only a “forged digital version”.
6. The Claimant argued that, when one compares all the Player’s signatures in documents
submitted in this case, one can come to a pretty simple conclusion that, even for a layman, a
signature from the Statement is not the same as in other documentation.
7. The player further underlined that the club “the Club failed to provide any kind of evidence to
this extent, i.e. it failed to provide at least screenshots of the WhatsApp communication”
between the parties.
8. The player insisted in his initial request.
9. In its duplica, the Respondent presented a series of screenshots from “WhatsApp”, allegedly
proving that the player signed and sent the waiver dated 8 February 2023.
pg. 4
REF. FPSD-10215
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 12 May 2023 and submitted for decision on 7 July 2023.
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.
2.
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 (March 2023 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 a player from Montenegro and a club from Kazakhstan.
3.
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 (March 2023 edition), and considering that the
present claim was lodged on 12 May 2023, the March 2023 edition of said regulations (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
4.
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.
5.
Merits of the dispute
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 abovementioned 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
pg. 5
REF. FPSD-10215
6.
The Chamber moved to the substance of the matter, and first observed that the parties concluded
an employment contract valid as from the 22 July 2022 until 30 November 2022 and that they also
considered as series of supplementary agreements (cf. point I.4 et seq.).
7.
Thereafter, the Chamber noted that the player lodged a claim for outstanding remuneration by
means of which he requested the payment of the outstanding amount of KZT 7,018,000 arising from
the supplementary agreements, as detailed in point I. 9 above.
8.
Conversely, the Chamber noted the position of the Respondent, who stated that all salary payment
obligations under the contract were fulfilled, but acknowledged that it still had debts under
supplementary agreements. The Respondent further provided a statement dated 8 February 2023,
by means of which the player, allegedly, confirms that he received all the amounts due “under the
employment contract”.
9.
In this respect, the Chamber then observed that the player argued that said document is forged.
10. In this respect, the Chamber deemed appropriate to remind the parties that, as a general rule, FIFA’s
deciding bodies are not competent to decide upon matters of criminal law, such as the one of
alleged falsified signatures of documents, and that such affairs fall into jurisdiction of the competent
national criminal authority. However, from the perspective of contract law and its effects, the
Chamber concurred that it was in a position to assess the validity of the contested documents.
11. Thus, the Chamber proceeded with the analysis of the contents of the agreement, exclusively for
the purposes of the present matter.
12. In this regard, after careful examination of the provided document, the Chamber observed that it
appears to be an electronically signed PDF allegedly transmitted via the "WhatsApp messenger."
However, it should be noted that there is no evidence to suggest that the player utilized a secure
signature service. Furthermore, the Chamber observed that the club presented evidence of a
"WhatsApp" conversation seemingly indicating that the player sent this document as an attached
file.
13. Nevertheless, irrespective of the document's validity, the Chamber deemed it pertinent to conduct
an analysis of its contents. The contents unequivocally pertain solely to outstanding debts under the
applicable employment contract. However, it is important to note that the Claimant's claim does not
relate to debts due under the employment contract, but specifically references the supplementary
agreements. The Claimant has explicitly requested payment of KZT 4,800,000, corresponding to the
bonus outlined in the second supplementary agreement, as well as the remaining balance of
amounts owed as per the first supplementary agreement. Consequently, the Chamber concurred
that the contested document, in reality, lacks relevance to the outcome of the case, as it does not
encompass the claimed amounts.
pg. 6
REF. FPSD-10215
14. Moreover, the Chamber also noted that the club also acknowledged that paid only as per the
employment contract, but not the supplementary agreements.
15. As a result, the Chamber had no other option than to assume that the following amounts, as
indicated in the supplementary agreements, remain outstanding:
KZT 4,800,000 net, due on 22 July 2022,
KZT 554,500 net balance of August 2022, due, according to the player, on 30/9/2022;
KZT 554,500 net balance of September 2022 due, according to the player, on 31/10/2022;
KZT 554,500 net balance of October due, according to the player, on 30/11/2022;
KZT 554,500 net balance of November due, according to the player, on 31/12/2022
Total: KZT 7,018,000 net
16. Therefore, in strict compliance with the principle of pacta sunt servanda, the Chamber established
that the Respondent shall pay to the Claimant, the total amount of KZT 7,018,000 net.
17. 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 due dates until the date of effective payment.
18. In continuation, 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.
19. To this end, the Chamber confirmed that the player put the club in default of payment of the
amounts sought, which had fallen due more than 30 days before, and granted the club a 10-day
deadline to cure such breach of contract.
20. 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.
21. 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 this
is the first offense by the club within the last two years, the Chamber decided to impose a warning
on the club in accordance with art. 12bis par. 4 lit. a) of the Regulations.
22. 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.
pg. 7
REF. FPSD-10215
ii. Compliance with monetary decisions
23. 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.
24. 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.
25. 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.
26. 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.
27. 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
28. 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.
29. 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.
30. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of
the parties.
pg. 8
REF. FPSD-10215
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Zvonko Ceklić, is accepted.
2.
The Respondent, FC Turan, must pay to the Claimant the following amounts:
- KZT 7,018,000 net as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount KZT 4,800,000 of as from 23 July 2022 until the date of effective payment;
- 5% interest p.a. over the amount KZT 554,500 of as from 1 October 2022 until the date of effective payment;
- 5% interest p.a. over the amount KZT 554,500 of as from 1 November 2022 until the date of effective payment;
- 5% interest p.a. over the amount KZT 554,500 of as from 1 December 2022 until the date of effective payment;
- 5% interest p.a. over the amount KZT 554,500 of as from 1 January 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.
7.
A warning is imposed on the Respondent
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 9
REF. FPSD-10215
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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pg. 10