DRC Overdue Payables
Texto da decisão
REF. FPSD-15884
Decision of the
Dispute Resolution Chamber
passed on 21 November 2024
regarding an employment-related dispute concerning the Player Alexandru
Cicaldau
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Andre DOS SANTOS MEGALE (Brazil), Member
Khadija TIMERA (Senegal), Member
CLAIMANT:
Alexandru Cicaldau, Romania
Represented by Riza Koklu
RESPONDENT:
Tumosan Konyaspor, Türkiye
pg. 2
REF. FPSD-15884
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:
•
•
•
•
•
•
•
•
•
•
•
•
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.
4.
On 25 June 2024, the Player sent a notice of default to the Club, demanding payment of
TRY 956,500 in respect of his tax liabilities for the year of 2023 (i.e., TRY 948,157.93 as the
principal amount plus TRY 8,342.07 as default interest).
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REF. FPSD-15884
5.
The Player provided, inter alia, the following attachments with his e-mail:
•
His income tax return together with an invoice issued by the “Ministry of Treasury
and Finance” dated 28 March 2024 for an amount of TRY 948,157.93; and
•
Proof of payment of TRY 956,500 to the “BEYOĞLU TAX OFFICE” on 29 April 2024.
The payments were split into two receipts, the first one for an amount of TRY
500,000 and the second for the balance of TRY 456,500.
6.
The Player requested to be reimbursed within 30 days.
7.
On 18 July 2024, the Player filed a first claim for overdue payables with the FIFA Dispute
Resolution Chamber (DRC), which was registered under ref. no. FPSD-15284 (hereinafter:
the First DRC Claim). In the First DRC Claim, the Player requested an amount of EUR 210,000
net, corresponding to the instalments due under the Contract from April to July 2024.
8.
The First DRC Claim did not relate to the Player’s tax liabilities.
9.
On 23 September 2024, the DRC issued its decision in the above case, awarding the Player
the requested amount of EUR 210,000 net, plus applicable interest as from the due dates.
II. Proceedings before FIFA
10. In parallel, on 3 September 2024, the Player filed the claim at hand before FIFA. A summary
of the parties’ position is detailed below.
a. Position of the Player
11. The Player preliminarily argued that he could not have claimed the sums now sought under
the First DRC Claim because the time limit granted in his notice of 25 June 2024 had not yet
expired. He therefore denied any question as to the admissibility of this second claim.
12. As to the substance, the Player recalled that the Contract provided for the payment of his
remuneration net of any taxes. He also pointed out that the Club undertook to pay the
income tax due on his net remuneration.
13. Consequently, the Player requested that he be awarded the net amount of TRY 956,500 by
way of reimbursement of his taxes, plus 5% interest from 26 July 2024 (i.e., the 31st day
following his notice of default).
14. The Player requested the following relief:
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REF. FPSD-15884
“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 overdue and outstanding
tax receivable of net TRY 956,500 along with the interest rate of 5% p.a. from 26 July 2024
until the date of effective payment,
3. Establish that the costs of the present arbitration procedure shall be borne by the
Respondent”.
b. Position of the Club
15. On 9 October 2024, the Club responded to the Player’s claim.
16. The Club did not dispute that the Player was entitled to a refund of his personal income tax
but argued that this refund should apply only to the contractual salary. The Club argued
that the Player should bear the part of the personal income tax relating to the noncontractual payments (i.e., match or other performance bonuses).
17. In support of its argument, the Club provided evidence of all payments made to the Player
throughout the entire contractual relationship.
18. In addition, the Club also pointed out that the tax receipt issued by the authorities
amounted to TRY 948,157.93 instead of the claimed TRY 956,500.
19. On the basis of the above, the Club argued that it was up to the Player to provide a
breakdown of the taxes paid and, in the absence of such a breakdown, the Club concluded
that the claim should be rejected in its entirety.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
20. 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 3 September 2024 and submitted for decision
on 21 November 2024. 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.
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REF. FPSD-15884
21. 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 a Romanian player
and a Turkish club.
22. 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 3 September 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
23. 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
24. 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.
i. Main legal discussion and considerations
25. The Chamber then proceeded to the substance of the matter, noting that it concerned a
claim for reimbursement of the personal income tax incurred by the Player for the calendar
year 2023.
26. The DRC noted that, on the one hand, the Player claims to be entitled to TRY 956,500,
corresponding to the tax refund for a period when he was still employed by the Club.
27. The Club, on the other hand argues that any reimbursement should be limited to the
amounts referred to in clause 3 of the Contract (i.e., excluding the extra-contractual
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REF. FPSD-15884
payments). Furthermore, as the Player has not provided a proper breakdown, the Club
argues that the claim should be dismissed.
28. In this context, it is for the Chamber to determine whether the Player is in fact entitled to a
reimbursement of his personal income tax and, if so, of which amount.
29. As a starting point, the DRC recalled that clause 3, item 1) of the Contract reads 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” (emphasis added by the Chamber).
30. In considering the above, the Chamber first noted that the provision refers only to the
Player’s “remuneration” and makes no distinction between the sums referred to in clause 3
and/or other payments spontaneously made by the Club (e.g., match or performance
bonuses). The DRC therefore decided that the Club’s argument in this respect was flawed.
31. The Chamber also stated that, even if it were to accept that the Club was not liable to pay
tax on non-contractual payments, the burden of proof was on the Club (and not the Player)
to provide a proper breakdown of the payments made and their corresponding contractual
nature. The DRC was further compelled to reach this conclusion by the fact that the Club
appeared to have made several unrelated payments to the Player, making it impossible (or
at least unduly burdensome) for the Player to identify each credit.
32. Consequently, the Chamber decided that the Club’s argument in this respect should be
rejected on all grounds.
33. In the DRC’s view, the Player should therefore be entitled to a refund of the tax incurred.
34. The foregoing notwithstanding, the DRC accepted the Club’s position that any refund
should be limited to the original tax liability (i.e., TRY 948,157.93) and should not include
the interest for the late payment (i.e., TRY 8’342.07) since this was expressly agreed by the
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REF. FPSD-15884
parties (see the last sentences of clause 3, item 1 of the Contract) and the Player had not
proven that any delay was attributable to the Club.
35. Finally, the Chamber decided to award the Player interest at 5% p.a. on the principal
amount as from 26 July 2024 until the date of effective payment, as requested.
ii. Art. 12bis of the Regulations
36. The Chamber then 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.
37. To this end, the DRC confirmed that the Player put the Club in default of payment of the
amounts sought, which had fallen due form more than 30 days, and granted the Club with
more than 10 days to cure such breach of contract.
38. 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 was the second offense by the Club within the last two years, the DRC decided to
impose a reprimand on the Club in accordance with art. 12bis par. 4 lit. b) of the
Regulations.
39. In this connection, the Chamber also highlighted that a repeated offence will be considered
as an aggravating circumstance and lead to more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
40. 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.
41. 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.
42. 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
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REF. FPSD-15884
consecutive registration periods shall become immediately effective on the Club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
43. 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.
44. 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
45. 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.
46. 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.
47. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 9
REF. FPSD-15884
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Alexandru Cicaldau, is partially accepted.
2.
The Respondent, Tumosan Konyaspor, must pay to the Claimant the following amount(s):
- TRY 948,157.93 as outstanding remuneration plus 5% interest p.a. as from 26 July 2024
until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A reprimand is imposed on the Respondent.
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
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REF. FPSD-15884
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
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