Labour Disputes
Texto da decisão
REF. FPSD-15284
Decision of the
Dispute Resolution Chamber
passed on 23 September 2024
regarding an employment-related dispute concerning the Player Alexandru
Cicaldau
COMPOSITION:
Martín AULETTA (Argentina), Deputy Chairperson
Jorge GUTIÉRREZ (Costa Rica), Member
Stefano SARTORI (Italy), Member
CLAIMANT:
Alexandru Cicaldau, Romania
Represented by Riza Koklu
RESPONDENT:
Tumosan Konyaspor, Türkiye
pg. 2
REF. FPSD-15284
I. Facts of the case
1.
On 8 August 2023, the Romanian player Alexandru Cicaldau (hereinafter: the Player or the
Claimant) and the Turkish club Tumosan Konyaspor (hereinafter: the Club or the Respondent)
concluded an employment contract (hereinafter: the Contract) valid from the signing date
until 30 June 2024.
2.
According to clause 3 of the Contract, the Club undertook to pay to the Player inter alia the
following amounts:
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•
•
•
•
•
•
•
•
•
•
•
3.
EUR 35,000 net as down payment on 15 September 2023;
EUR 70,000 net on 31 August 2023;
EUR 70,000 net on 1 October 2023;
EUR 70,000 net on 31 October 2023;
EUR 70,000 net on 30 November 2023;
EUR 70,000 net on 1 January 2024;
EUR 70,000 net on 31 January 2024;
EUR 70,000 net on 28 February 2024;
EUR 70,000 net on 1 April 2024;
EUR 70,000 net on 30 April 2024;
EUR 70,000 net on 31 May 2024;
EUR 70,000 net on 1 July 2024.
The same clause 3 of the Contract also reads inter alia as follows:
“1. Amounts mentioned under this Contract are net of Turkish taxes. The Club is obliged
to pay the income tax and withholding tax that will arise from the net remuneration of
the Player as per this Contract. In addition, the Club will cover the income tax that the
Player is obliged to pay as per this Contract in Turkey provided that the Player submits
the proof of the payment regarding the income tax paid by him as per this Contract to
the Club. In case the Player submits the proof of payment to the Club, the amount of the
income tax which is included in the proof of payment and paid by the Player as per this
Contract will be paid by the Club to the Player within 30 days after the Player submits the
proof [of] payment. The scope of this provision is limited to Turkish taxes that arise on
the Player’s income in accordance with this contract only. The Club will not pay taxes
arising from the legislation of other countries. The Parties solely acknowledge that the
obligation to declare his income to the Turkish tax authorities lies solely on the Player
and therefore, the Club cannot be held liable to reimburse penalties or interests arising
from a violation of this obligation.
[…]
25. Bonus payments apart from the ones mentioned under this contract, will not be paid
to the Player. Payment of bonuses to another/other member or members of the Club or
pg. 3
REF. FPSD-15284
payment of bonuses to the Player beyond this contract, will not grant the right to request
bonus payments to Player and will not be interpreted as workplace conditions. Payment
of bonuses. in case it is decided at the sole discretion of the Club, will be made in cash in
exchange for a receipt or to the Player 's bank account, with the payment description of
‘bonus’. The payments which do not hold such a description will not be considered as
bonus payments”.
II. Proceedings before FIFA
4.
On 18 July 2024, the Player filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Claim of the Player
5.
The Player claimed that the Club had failed to pay him a part of his remuneration. In
particular, he submitted the following relief, quoted verbatim:
“Reserving all our legal rights/the other receivables and on the basis of the facts, legal
arguments that set out above, we respectfully request the FIFA Dispute Resolution
Chamber to:
1. Accept the claims of [the Player].
2. Order [the Club] to pay in favour of the Claimant the total unpaid and overdue
payments of net EUR 210,000 along with the interest rate of 5% p.a. from the following
due dates until the date of effective payment;
• Net EUR 70.000 along with interest thereon at the rate of 5% p.a. from 2 April 2024
until the date of effective payment,
• Net EUR 70.000 along with interest thereon at the rate of 5% p.a. from 1 May 2024
until the date of effective payment,
• Net EUR 35.000 along with interest thereon at the rate of 5% p.a. from 1 June 2024
until the date of effective payment.
• Net EUR 35.000 along with interest thereon at the rate of 5% p.a. from 2 July 2024
until the date of effective payment.
3. Establish that the costs of the present arbitration procedure shall be borne by the
Respondent”.
pg. 4
REF. FPSD-15284
b. Reply of the Club
6.
On 15 August 2024, the Club submitted its response to the claim and disputed the quantum
claimed by the Player.
7.
The Club pointed out that the Club had paid a total amount of EUR 552,410.98 for the
duration of the Contract, namely: (i) EUR 525,000; and (ii) TRY 906,071.25 (i.e., EUR 27,410.98
at the exchange rate on the dates of payment).
8.
According to the Club, all these payments should be considered as part of the Player’s
remuneration and therefore credited against its debt.
9.
The Club referred to: (i) clause 3 par. 25 of the Contract; and (ii) Swiss and Turkish law in
support of its argument. Similarly, the Club provided the following breakdown of the
payments allegedly made, in addition to bank statements.
10. In light of the above, the Club requested that any claim by the Player be rejected.
c. Additional comments of the Player
11. On 19 August 2024, at the request of the FIFA general secretariat based on art. 23, par. 2
of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules),
the Player submitted additional comments on the proof of payment provided by the Club.
12. The Player confirmed that the following payments were made by the Club in respect of his
fixed remuneration:
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•
•
•
•
•
•
•
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EUR 35,000 on 15 September 2023;
EUR 30,000 on 20 October 2023;
EUR 70,000 on 1 December 2023;
EUR 80,000 on 12 January 2024;
EUR 50,000 on 29 February 2024;
EUR 70,000 on 4 March 2024;
EUR 50,000 on 3 March 2024;
EUR 70,000 o 8 April 2024; and
EUR 70,000 on 24 May 2024.
13. Notwithstanding the foregoing, the Player contended that the other amounts referred to
by the Club were in fact “non-contractual bonus payments which have not been accepted by
the Player and cannot be deducted from the contractual receivables”.
14. The Player made, inter alia, the following remarks in this respect:
pg. 5
REF. FPSD-15284
•
The proof of payments submitted by the Club in TRY “are not conclusive
documents that can be used to determine that the relevant payments were made to
the player in respect of the player’s contractual receivables”. Similarly, the Player’s
salary was fixed in EUR and not in TRY.
•
The Club did not specify the purpose of the payments made in TRY. On the other
hand, the payments of Player’s fixed remuneration contained the reference
“salary fee” and totalled EUR 525,000, leaving a balance of EUR 210,000.
•
“The well-established jurisprudence of the FIFA Football Tribunal is also in the view
that non-contractual bonus payments made in a currency other than the currency
agreed in the contract cannot be deducted from contractual receivables”. The Player
referred to the Football Tribunal cases ref. no. FPSD-6212, FPSD-7402 and FPSD8745.
•
At the time of signing the Contract, the Player believed that clause 3 par. 25
would not be used in bad faith by the Club – who is abusing its dominant
position. Consequently, this clause 3 par. 25 should not be applied.
•
The timing of the payments confirmed that they were related to match bonuses.
In this respect, the Player submitted a match log and identified each payment
vis-à-vis the outcome of the matches played on or around the same date.
•
Each amount paid by the Club was also mathematically logical, taking into
account: (i) the result and importance of each match; and (ii) whether the Player
was fielded and contributed to the result. The Player gave several examples of
the amounts paid vis-à-vis the background of the match.
15. On the basis of the above, the Player reiterated his requests for relief.
d. Additional comments of the Club
16. To safeguard the parties’ procedural rights and right to be heard, the FIFA general
secretariat also invited the Club to comment on the Player’s statement of 19 August 2024
(cf., art. 23 par. 2 of the Procedural Rules).
17. On 26 August 2024, the Club submitted its comments and rejected the Player’s account of
the payments. In particular, the Club stressed that (i) the Player was not entitled to the
bonuses under clause 3 par. 25 of the Contract; (ii) the Player accepted the payments
without reservation; (iii) the jurisprudence of Football Tribunal relied upon by the Player
was not applicable because in those cases there was no contractual clause such as in the
present case.
18. Therefore, the Club reiterated that the Player’s claim should be rejected.
pg. 6
REF. FPSD-15284
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. 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
23 September 2024. Taking into account the wording of art. 34 of the March 2023 edition
of the Procedural Rules, the aforementioned edition of the Procedural Rules is applicable
to the matter at hand.
20. 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 Romanian player
and a Turkish club.
21. 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
22. 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
23. 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. 7
REF. FPSD-15284
i. Main legal discussion and considerations
24. The Chamber then proceeded to the substance of the matter, noting that it concerned a
claim for outstanding remuneration brought by the Player against the Club on the basis of
the Contract.
25. The DRC noted that the Player claimed to be entitled to his salaries from April to July 2024
(i.e., a total of EUR 210,000 plus interest). The Club, on the other hand, did not dispute that
the Player should have received these sums, but argued that they had already been paid
(at least in part).
26. The Club provided evidence that of the EUR 735,000 to which the Player was entitled to
under the Contract, EUR 552,410.98 had been paid: (i) EUR 525,000; and (ii) TRY 906,071.25
(i.e., EUR 27,410.98 at the exchange rate on the dates of payment).
27. Although the above sums were unambiguously received by the Player, the parties disagree
as to the assessment of whether the TRY 906,071.25 should be credited against the debt
or whether it was paid in addition to the contractual remuneration i.e., as performancerelated bonuses.
28. In light of the foregoing, the Chamber first turned its attention to the Contract and found
that it does not provide for the payment of any performance bonus. On the contrary, the
DRC noted that clause 3 par. 25 of the Contract establishes the opposite: the Player was
not entitled to any bonuses but only to the contractual salary, and any additional payment
should have been identified as such.
29. Consequently, and in such a contractual constellation, the Chamber determined that the
Player bore had the burden of proving that the parties had reached a different agreement
and that the additional payments mentioned by the Club were made under a different
concept than salary. In other words, regardless of the contractual terms agreed by on the
parties, it was for the Player to prove – and provide sufficient evidence for his allegations –
that their understanding had been different in practice.
30. With this in mind, and having carefully analysed the evidence on file, the DRC decided that
the Player has sufficiently discharged his burden. The Chamber has given particular weight
to the following:
•
the proof of payment provided by the Club is not specified and does not match
neither the dates of payment or the corresponding amount of each instalment
of the Player’s salary;
•
the salaries were paid in EUR, as stipulated in the Contract and with specific a
reference to their contractual nature, whereas the disputed payments were
transferred in TRY and without any reference;
pg. 8
REF. FPSD-15284
•
the match calendar and calculations provided by the Player are not only logical
and credible but have not been specifically challenged by the Club; and
•
the amounts paid by the Club in each transfer are significantly lower than the
Player’s expected monthly earnings. As such and in the absence of any
explanation to the contrary, there is no rational link between these payments
and the contractual provisions.
31. On the basis of the foregoing considerations, the DRC concluded that, although the Player
was able to support his position regarding the additional remuneration, the Club limited
itself to referring to clause 3 par. 25 of the Contract, which is not irrefutable vis-à-vis the
primacy of reality. Similarly, the Club did not provide any reasonable explanation regarding
the periodicity, the nature, and the amount of the payments.
32. In conclusion, the Chamber decided that the Player be awarded the full outstanding
remuneration claimed on the basis of the general legal principle of pacta sunt servanda, in
the total amount of EUR 210,000 net.
33. In addition, the DRC determined that the Player is also entitled to interest at the rate of 5%
p.a. from the day following each due date until the date of effective payment.
34. Lastly, the Chamber pointed out that the amounts awarded to the Player should be net of
Turkish taxes.
ii. Compliance with monetary decisions
35. 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.
36. 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.
37. 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. 24 par. 2, 4, and 7 of the Regulations.
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REF. FPSD-15284
38. 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.
39. 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
40. 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.
41. 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.
pg. 10
REF. FPSD-15284
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Alexandru Cicaldau, is accepted.
2.
The Respondent, Tumosan Konyaspor, must pay to the Claimant the following amount(s):
- EUR 70,000 net as outstanding remuneration plus 5% interest p.a. as from 2 April 2024 until
the date of effective payment;
- EUR 70,000 net as outstanding remuneration plus 5% interest p.a. as from 1 May 2024 until
the date of effective payment;
- EUR 35,000 net as outstanding remuneration plus 5% interest p.a. as from 1 June 2024 until
the date of effective payment; and
- EUR 35,000 net as outstanding remuneration plus 5% interest p.a. as from 2 July 2024 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.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 11
REF. FPSD-15284
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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396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 12