Acórdão do FIFA, processo Chery_2020-01-30

Data

30/01/2020

Fonte

inside.fifa.com

Labour Disputes

Texto da decisão

Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 17 January 2020,
in the following composition:

Om ar Ongaro (Italy), Deputy Chairman
S tefano S artori (Italy), member
Jos e Luis Andrade (Portugal), member

on the claim presented by the player,

Tjaronn Chery , The Netherlands,
represented by Mr Pieter Hoogstad
as Claimant

against the club,

Kay s eris por Kulübü, Turkey
as Respondent

regarding employment-related dispute arisen between the parties.

Facts of the cas e

On 28 July 2018, the Dutch player, Mr Tjaronn Chery (hereinafter: the player or the
Claimant), concluded an employment contract (hereinafter: the contract) with the
Turkish club Kayserispor Kulübü (hereinafter: the club or the Respondent), valid for
the “entire 2018/2019 football season”, i.e. from 28 July 2018 until 30 June 2019.
The player joined the club on loan, by means of which he was, inter alia, entitled to
receive from the club a salary in the amount of EUR 700,000 as follows:
-

EUR 100,000 as advance payment on 3 August 2018;
EUR 50,000 as advance payment on 31 October 2018;
EUR 50,000 as advance payment on 30 November 2018;
EUR 500,000 in ten equal instalments of EUR 50,000, starting on
31 August 2018 until 30 May 2019.

Equally, the club had to pay to the player the sum of EUR 20,000 “for the expenses
with regard to – including but not limited with – residence, car, flight tickets (...)”
as follows:
-

EUR 10,000 until 31 August 2018;
EUR 10,000 until 31 January 2019.

Finally, the player was entitled to receive from the club several bonuses depending
on the performances of the club. In particular, the player was entitled to receive
EUR 1,000 “for each point of the Professional Football A Team of the Club in TFF
Super League matches during the football season of 2018/2019 (...)”

On 2 July 2019, the player lodged a claim against the club in front of FIFA and
requested the payment of the total amount of EUR 355,000, plus 5% interest p.a.
“as from the successive days of the date that the [relevant] amounts were
contractually due”.

In addition, the player requested FIFA to impose sanctions on the club in accordance
with art. 12bis of the Regulations on the Status and Transfer of Players.

According to the player, the club had failed to pay him the following amounts:
-

EUR 10,000, corresponding to expenses from 31 August 2018;
EUR 50,000, corresponding to his December 2018 salary;
EUR 50,000, corresponding to his January 2019 salary;
EUR 10,000, according to the expenses from 31 January 2019;
EUR 50,000, corresponding to his February 2019 salary;
EUR 50,000, corresponding to his March 2019 salary;
EUR 35,000 as “match points premiums from 16 April 2019”;
EUR 50,000, corresponding to his April 2019 salary;
EUR 50,000 corresponding to his May 2019 salary.

Player Tjaronn Chery, The Netherlands / Club Kayserispor Kulübü, Turkey

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Equally, the player clarified that, by means of an email dated 24 April 2019, the club
had agreed to pay him the outstanding amounts of EUR 305,000, by no later than
10 May 2019 and the sum of EUR 50,000, by no later than 30 May 2019.

In its reply, the club rejected the claim of the player, arguing that only the sum of
EUR 246,096.56 had remained unpaid.

In this respect, the club argued that, in accordance with the contract, the player was
entitled to receive the total amount of EUR 755,000 and had so far received the sum
of EUR 509,903.44 as follows:
-

EUR 100,000 on 3 August 2018;
EUR 20,000 on 2 November 2018;
EUR 50,000 on 13 November 2018;
EUR 20,000 on 23 November 2018;
EUR 70,000 on 14 December 2018;
EUR 50,000 on 8 January 2019;
EUR 40,000 on 6 March 2019;
EUR 50,000 on 11 April 2019;
EUR 60,000 on 7 May 2019;
TRY 24,100 “equals to EUR 3,467.62” on 15 August 2018;
TRY 13,300 “equals to EUR 1,740.83” on 31 August 2018;
TRY 31,600 “equals to EUR 4,270.27” on 12 September 2018;
TRY 30,440 “equals to EUR 3,943” on 13 September 2018;
TRY 25,200 “equals to EUR 4,077.66” on 2 November 2018;
TRY 26,750 “equals to EUR 4,342.53” on 4 January 2019;
TRY 24,950 “equals to EUR 4,193.27” on 31 January 2019;
TRY 13,750 “equals to EUR 2,314.81” on 6 February 2019;
TRY 13,500 “equals to EUR 2,276.55” on 15 February 2019;
TRY 13,400 “equals to EUR 2,233.33” on 20 February 2019;
TRY 24,600 “equals to EUR 4,052.71” on 1 March 2019;
TRY 26,125 “equals to EUR 3,964.33” on 26 April 2019;
TRY 23,100 “equals to EUR 3,407.07” on 30 March 2019 and
TRY 38,100 “equals to EUR 5,619.46” on 14 May 2019.

10.

In support of its allegations, the club provided FIFA with the relevant proof of
payments.

11.

The player rejected the allegation of the club that he would have only been entitled
to receive the sum of EUR 755,000, pointing out that the contract provided for a
fixed amount of EUR 720,000 and that, additionally, the club had to pay him
“bonuses and match points premium”.

12.

According to the player, all payments received from the club in Turkish Liras, were
payments “with regard to gained match points premium” and that he had received
the total amount of EUR 49,903.44 “for those gained match points”, whereas this
amount could not be deducted from his salary. The player further clarified in this
regard that during the 2018/2019 season all the players of the club had received
“more than the contractually agreed EUR 1.000 per point”.

Player Tjaronn Chery, The Netherlands / Club Kayserispor Kulübü, Turkey

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13.

In addition, the player pointed out that salary and bonuses had been paid in two
different accounts by the club and that “these payments must be separated from
each other and remain separate”.

14.

Equally, the player acknowledged that, in the meantime, he had received from the
club the additional sum of EUR 60,000.

15.

In continuation, the player stressed that, “by mails dated 19 and 24 April 2019”, the
parties had reached an agreement with regard to the payment of the sum that had
been outstanding until now and which amounted to EUR 355,000.

16.

From the player’s point of view, the aforementioned agreement was to be
considered as a novum and therefore replaced all previous agreement.

17.

“However and contrary to the consensus reached, after that day Kayserispor only
paid the amounts ad EUR 3,964.22, EUR 3,407.07, EUR 5,619.46 and EUR 60,000 (...)”.
As a result, the player deemed that the remaining amount of EUR 282,009.14 “plus
interest (EUR 355,000 – EUR 3,964.33 – EUR 3,407.07 – EUR 5,619.46 – EUR 60,000)”
was to be paid by the club.

18.

Subsidiary and in the “unlikely event your DRC should decide that no agreement
was reached between the parties about a new total payment schema on 24 April
2019 (...)”, the player requested the club to pay him the outstanding amount of EUR
260,000 plus interest (EUR 720,000 – EUR 460,000). In this context, the player
pointed out once again that all payments made by the club in TRY corresponded to
match point premiums.

19.

“More subsidiary” and in case the “FIFA DRC should decide that despite the new
agreement reached (...) and despite the structural payments to different IBAN’s for
different amounts (salary vs premiums) all payments in Turkish liras should be taken
into account with regards to the calculation of the total salary payment and
expenses”, the player requested the payment of EUR 250,096.56 “plus interest”
(EUR 760,000,00 – EUR 509,903.44).

20.

As to the interests, the player clarified that they were to be paid “as from the
successive days of the date that the amounts were contractually due by Kayserispor
(...)”.

21.

The club contested that the contract provided for the player to receive the sum of
EUR 760,000, arguing that the total amount was of EUR 755,000.

22.

Equally, the club contested the allegation of the player that the amounts paid to
the latter in TRY would correspond to bonuses. According to the club, it had made
several payments in TRY because it was undergoing some financial difficulties and
therefore “as soon as the money passes to the club’s coffers (...) the Club tries to
pay small/different amounts to the players. By this reason some of the payments
made in Turkish Lira in different amounts”.

Player Tjaronn Chery, The Netherlands / Club Kayserispor Kulübü, Turkey

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23.

In addition, the club alleged having made the additional payment of EUR 29,000 to
the player on 10 September 2019.

24.

As a result, the club deemed that the total amount of EUR 538,903.44 had so far
been paid to the player and therefore such amount was to be deducted from the
outstanding remuneration due to the latter.

25.

The player contested having received the additional sum of EUR 29,000 from the
club arguing that he did not know the IBAN to which the payment in question had
been made.

26.

According to the player, the same IBAN had allegedly already been used to wire
him the sum of EUR 100,000 on 3 August 2018 as per the payment receipts enclosed
by the club although he had received such amount cash.

27.

Hence, the club requested FIFA to disregard the relevant alleged payment and
reiterated the content of his latest request.

28.

Nevertheless, and in case the FIFA DRC would consider that the sum of EUR 29,000
had indeed been paid by the club, the player deemed that the club “should be
obliged to ensure and achieve that this amount is transferred in full” to his actual
IBAN or to the account of his lawyer “within 30 days as from the date of notification
of the decision”.

II.

Cons iderations of the Dis pute Res olution Cham ber

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 submitted to FIFA on 2 July 2019.
Taking into account the wording of art. 21 of the 2019 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.

With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1 of
the Procedural Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and Transfer
of Players (edition January 2020). In accordance with art. 24 par. 1 in combination
with art. 22 lit. b) of the aforementioned Regulations, the Dispute Resolution
Chamber would, in principle, be competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between
a Dutch player and a Turkish club.

Subsequently, the Chamber analysed which edition of the Regulations on the Status
and Transfer of Players should be applicable as to the substance of the matter. In
this respect, the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (editions June 2019, October 2019
and January 2020) and, on the other hand, to the fact that the present claim was

Player Tjaronn Chery, The Netherlands / Club Kayserispor Kulübü, Turkey

Page 5 of 10

lodged on 2 July 2019. The Dispute Resolution Chamber concluded that the June
2019 version of the Regulations on the Status and Transfer of Players (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
4.

The competence of the Chamber and the applicable regulations having been
established, and entering into the substance of the matter, the Chamber started by
acknowledging the above-mentioned facts as well as the documentation contained
in the 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.

In this respect, the Chamber observed that the parties had signed an employment
contract on 28 July 2018, in accordance with which the player was entitled to
receive, inter alia, the amount of EUR 700,000 as total remuneration for the term
of the contract, payable as follows: (i) EUR 100,000 as advance payment on 3 August
2018; (ii) EUR 50,000 as advance payment on 31 October 2018; (iii) EUR 50,000 as
advance payment on 30 November 2018; (iv) EUR 500,000 in ten equal instalments
of EUR 50,000, starting on 31 August 2018 until 30 May 2019.

Furthermore, the Chamber noted that the player was as well entitled to the sum of
EUR 20,000 for further expenses, payable as follows: (i) EUR 10,000 until 31 August
2018 and (ii) EUR 10,000 until 31 January 2019.

In addition, the Chamber observed that the club had to pay the player several
bonuses depending on the performances of the team. In particular, the Chamber
noted that the player was entitled to receive EUR 1,000 “for each point of the
Professional Football A Team of the Club in TFF Super League matches during the
football season of 2018/2019 (...)”.

In continuation, the Chamber noted that the Claimant alleged that the Respondent
failed to pay the alleged outstanding amount of EUR 355,000, calculated as:
-

Furthermore, the Chamber took note of an email dated 24 April 2019, in which the
club had agreed to pay the player the outstanding amounts of EUR 305,000 by no
later than 10 May 2019, and the sum of EUR 50,000 by no later than 30 May 2019.

10.

The Chamber noted that the Claimant asked to be awarded the payment of the
total amount of EUR 355,000 plus 5% interest p.a. “as from the successive days of
the date that the [relevant] amounts were contractually due”.

Player Tjaronn Chery, The Netherlands / Club Kayserispor Kulübü, Turkey

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11.

Equally, the Chamber took note of the reply of the Respondent, which asserted that
the player was entitled to receive the total amount of EUR 755,000 and only the
sum of EUR 246,096.56 had remained unpaid.

12.

In this regard, the Chamber duly took note that the Respondent provided
documentation to attest of the alleged payments of EUR 509,903.44 as follows:
-

13.

Along this line, the Chamber observed that the Claimant contested that the total
amount to be received by him amounted to EUR 755,000. The Chamber took note
of Claimant’s argument that the contract provided for bonuses on the top of the
fixed amount of EUR 720,000. According to the Claimant, the amount of
EUR 49,903.44 were therefore bonuses, paid separately on two different accounts.

14.

The DRC took note that the Respondent, on the other hand, contested that those
payments were related to bonus payments and that those respective payments were
made in TRY, solely because the Respondent was in financial difficulties and tried,
at least partially, to accommodate the Claimant with salary payments.

15.

Turning its attention on the question as to whether the payments in TRY were
indeed bonuses and not salaries, as alleged by the Claimant, the Chamber recalled
that the contract provides for the payment of match bonuses and in this context,
the Chamber established that – given to lack of evidence provided by the club as to
the contrary - these small amounts paid by the Respondent meant for that concept.

Player Tjaronn Chery, The Netherlands / Club Kayserispor Kulübü, Turkey

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16.

Subsequently, the Chamber recalled the email dated 24 April 2019, in which the
club had agreed to pay the player the outstanding amounts of EUR 305,000 by no
later than 10 May 2019, and the sum of EUR 50,000 by no later than 30 May 2019.
In this context, the Chamber took note of the Claimant’s argument that such
agreement shall be considered as a novum, replacing all previous agreements.

17.

With regard to the above-mentioned agreement, the Chamber concluded that
there is a clear exchange of e-mails between the legal representatives of the parties,
in which the Respondent acknowledges the outstanding amount of EUR 355,000
towards the Claimant, in order to suspend the termination of the contract of the
latter.

18.

Furthermore, the DRC duly noted that after the conclusion of the above-mentioned
agreement, the Claimant acknowledged the payment of the following amounts:
(i) EUR 3,964.22; (ii) EUR 3,407.07; (iii) EUR 5,619.46; and (iv) EUR 60,000.

19.

In this context, the Chamber took note that on 10 September 2019, the Respondent
allegedly made a payment of EUR 29,000 to the Claimant, which the latter
contested.

20.

That said, the DRC considered the evidence on file with regard of the alleged
payment of EUR 29,000. The Chamber concluded that since the amount was paid to
a Turkish account different to the one used previously and, moreover, there is no
evidence that the Claimant received such amount, the payment cannot be taken
into consideration.

21.

In view of the above, recalling that the Respondent acknowledged a debt of
EUR 355,000 and the Claimant acknowledged the payment of EUR 72,990.75, the
DRC decided consequently that, in accordance with the general legal practice of
pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding
remuneration in the total amount of EUR 282,009.14.

22.

In addition, taking into consideration the claim lodged by the Claimant, as well as
the constant practice of the DRC, the Chamber decided to award the Claimant
interest at the rate of 5% p.a. as from 31 May 2019, until the date of effective
payment.

23.

Furthermore, taking into account the consideration under number II./3. above, the
Chamber referred to par. 1 and 2 of art. 24bis 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 Chamber established that, in virtue of the aforementioned
provision, it has competence to impose a sanction on the club. More in particular,
the DRC pointed out that, against clubs, the sanction shall consist in a ban from
registering any new players, either nationally or internationally, up until the due

Player Tjaronn Chery, The Netherlands / Club Kayserispor Kulübü, Turkey

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amount is paid and for the maximum duration of three entire and consecutive
registration periods.
25.

Therefore, bearing in mind the above, the DRC decided that, in the event that the
club does not pay the amount due to the player within 45 days as from the moment
in which the player, following the notification of the present decision,
communicates the relevant bank details to the club, a ban from registering any new
players, either nationally or internationally, for the maximum duration of three
entire and consecutive registration periods shall become effective on the club in
accordance with art. 24bis par. 2 and 4 of the Regulations.

26.

Finally, the Chamber recalled that the above-mentioned sanction will be lifted
immediately and prior to its complete serving upon payment of the due amounts,
in accordance with art. 24bis par. 3 of the Regulations.

27.

The Chamber concluded its deliberations by rejecting any further claim lodged by
the Claimant.

III.

Decision of the Dis pute Res olution Cham ber

1. The claim of the Claimant, Tjaronn Chery, is partially accepted.
2. The Respondent, Kayserispor Kulübü, has to pay to the Claimant outstanding
remuneration in the amount of EUR 282,009.14, plus 5% interest p.a. as of 31 May
2019 until the date of effective payment.
3.

Any further claim lodged by the Claimant is rejected.

The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the email address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amounts mentioned under point 2 above.

The Respondent shall provide evidence of payment of the due amounts in
accordance with point 2 above to FIFA to the e-mail address [email protected], duly
translated, if need be, into one of the official FIFA languages (English, French,
German, Spanish).

In the event that the amount due plus interest in accordance with point 2 above is
not paid by the Respondent w ithin 45 day s as from the notification by the
Claimant of the relevant bank details to the Respondent, the Respondent shall be
banned from registering any new players, either nationally or internationally, up
until the due amounts are paid and for the maximum duration of three entire and
consecutive registration periods (cf. art. 24bis of the Regulations on the Status and
Transfer of Players).

Player Tjaronn Chery, The Netherlands / Club Kayserispor Kulübü, Turkey

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The ban mentioned in point 6. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.

In the event that the aforementioned sum plus interests is still not paid by the end
of the ban of three entire and consecutive registration periods, the present matter
shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration
and a formal decision.
*****

Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or
the DRC. Where such decisions contain confidential information, 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 20 of the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber).
Note related to the appeal procedure:
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS. Within
another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:

Emilio García Silvero

Player Tjaronn Chery, The Netherlands / Club Kayserispor Kulübü, Turkey

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Chief Legal & Compliance Officer

Player Tjaronn Chery, The Netherlands / Club Kayserispor Kulübü, Turkey

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