DRC Overdue Payables
Texto da decisão
REF. FPSD-16448
Decision of the
Dispute Resolution Chamber
passed on 15 November 2024
regarding an employment-related dispute concerning the Player Armin
Derlek
BY:
Tarek BRAUER, Germany
CLAIMANT:
Armin Derlek, Serbia
Represented by Davor Radić
RESPONDENT:
EMS Yapi Sivasspor, Türkiye
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REF. FPSD-16448
I. Facts of the case
1.
On 6 August 2019, the Serbian player Armin Derlek (hereinafter: the Player or the Claimant)
and the Turkish club EMS Yapi Sivasspor (hereinafter: the Club or the Respondent) entered
into an employment contract (hereinafter: the Employment Contract), which was valid from
the signing date until 31 May 2024.
2.
On 31 August 2023, the parties decided to prematurely terminate the Employment
Contract by means of a termination agreement (hereinafter: the Termination Agreement),
which contained inter alia the following terms and conditions:
“a. The Player, as of the signing date of this [Termination Agreement], has receivables in
the total amount of 108.000.-Euro; breaking down as outstanding remuneration in the
amount of 80.000.- Euro from the 2022/2023 season (meaning all of his receivables that
became due until the date of 30.08.2023) and the partial amount of 28.000.-Euro as the
pro rata amount corresponding to 28 days of the instalment dated 31.08.2023, which is
yet to mature but are becoming due with the termination of the [Employment Contract].
b. The Player requested the payment of 142.000.-Euro to him by the Club as a
compensation for the premature termination of the [E]mployment [C]ontract. The Club
accepted the request.
c. The total amount of 250.000.-Euro, consisting of the receivables of the Player and the
compensation for the premature termination of the [E]mployment [C]ontract given under
the paragraphs above, will be paid to the Player in five equal instalments of 50.000.-Euro,
respectively on: 30.09.2023, 31.12.2023, 31.03.2024, 30.06.2024 and 30.09.2024. The
payments given under this paragraph shall be paid to the known bank account of the
Player, net from Turkish taxes which are subject to stoppage, that the Club is obliged to
pay only.
d. In the event of failure, delay or partial payment by Club to the Player of any of the
agreed amount as provided under the clause c) above, provided that the Player puts the
Club in default in writing and provides the Club with 15 days to pay the relevant
instalment, but the Club docs not deliver the payment within the 15-day deadline, the
amount which is not paid become immediately due and interest shall accrue at the rate
of 5% per annum shall apply starting from the date of default until the date of effective
payment. In addition, and in the event of failure, delay or partial payment by Club to the
Player of any of the agreed amounts provided under the clause c) above, and provided
that the Player puts the Club in default in writing and provides the Club with 15 days to
pay the relevant instalment, but the Club docs not deliver the payment within the 15-day
deadline, the Player shall be entitled to receive from Club a penalty amount equal to 10%
of relevant amount (to be calculated based on the unpaid due amount) in addition to the
above-mentioned amount(s) which is not payable at the agreed time. This percentage of
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REF. FPSD-16448
penalty has been freely negotiated by the Parties and expressly recognized by both
Parties as a reasonable, proportionate and acceptable amount.
[…]
f) The Player hereby releases the Club, except for the payment of 250.000.-Euro net as
given above, from its all obligations derived from all the contracts including but not
limited to the [Employment Contract] in full and irrevocably. In sake of clarity, the Player
hereby declares and accepts that he will not have any claims from the Club except for
the payment of 250.000.-Euro as given above; as compensation, remuneration or in any
other name”.
3.
The Club paid the following amounts to the Player under the Termination Agreement:
•
•
•
4.
EUR 50,000 on 20 October 2023;
EUR 50,000 on 31 January 2024; and
EUR 50,000 on 7 June 2024.
On 9 August 2024, the Player sent a notice of default to the Club, demanding payment of
the fourth instalment of EUR 50,000 net within the following 10 days.
II. Proceedings before FIFA
5.
On 5 October 2024, the Player filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Position of the Player
6.
The Player claimed to be entitled to EUR 50,000 net (i.e., the fourth instalment under the
Termination Agreement), plus interest at 5% p.a. as from 1 July 2024 until the date of actual
payment.
7.
The Player also requested that a warning be issued to the Club on the basis of art. 12bis of
the Regulations on the Status and Transfer of Players (hereinafter: the Regulations).
b. Position of the Club
8.
On 7 October 2024, the FIFA general secretariat sent a proposal to the parties pursuant to
art. 20 of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural
Rules), proposing that the matter be settled by the payment by the Club to the Player of
“EUR 50,000 net of taxes in Türkiye plus 5% interest p.a. as from 1 July 2024 until the date of
payment”.
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REF. FPSD-16448
9.
On 31 October 2024, the Club rejected the above proposal and submitted its response to
the Player’s claim. The Club suggested that the amounts claimed by the Player should be
tax deductible, but it did not elaborate or provide any documentation to support its
position.
10. In fact, the Club stated the following in this regard, quoted verbatim:
4. In accordance with the Turkish tax legislation, the income tax imposed on football
players consists of two segments; (i) the stoppage, which is to be paid by the employer
(club) by way of withholding and (ii) the personal income tax, which in return accrues in
accordance with the declaration of the players of their all incomes (not limited to the
income that they generate from their employer clubs, but even income is included in
these declarations) generated in one calendar year.
5. Whereas the stoppage corresponds to 20% of the income that is effectively paid by the
employer club only, the personal income tax corresponds to (up to) 40% of all incomes
of the player in question.
6. The Respondent believes that the Honourable Chamber is knowledgeable about the
tax regime in Türkiye, as it was examined and ruled upon in previous occasions, and does
not wish to further elaborate on the legal provisions regulating the Turkish income lax.
in order not to act contrary to procedural economy”.
11. The Club submitted the following relief:
“In light of the explanations given above, by reserving all rights, the Respondent hereby
respectfully requests from the Honourable Chamber to reject all claims of the Claimant
in full. Respectfully submitted.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter: the Single Judge)
analysed whether he was competent to deal with the case at hand. In this respect, he took
note that the present matter was presented to FIFA on 5 October 2024 and submitted for
decision on 15 November 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.
13. Furthermore, the Single Judge 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 (June 2024 edition), the Dispute Resolution Chamber is competent to deal with
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REF. FPSD-16448
the matter at stake, which concerns an employment-related dispute with an international
dimension between a Serbian player and a Turkish club.
14. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations (June 2024 edition) and considering that the present claim was
lodged on 5 October 2024, the June 2024 edition of said regulations is applicable to the
matter at hand as to the substance.
b. Burden of proof
15. The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
16. Having established the competence and the applicable regulations, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for assessing the matter at hand.
i. Main legal discussion and considerations
17.
The Single Judge then proceeded to the substance of the matter, noting that it concerned
a claim for overdue payables brought by the Player against the Club based on the
Termination Agreement.
18.
The Single Judge observed that the Player claims payment of the fourth instalment under
the Termination Agreement, which was due by 1 July 2024.
19.
The Club, on the other hand, does not appear to dispute its default but suggests that the
claim should not succeed because of the tax issues in Türkiye. Although referring to the
Turkish law, the Club did not elaborate or provide any supporting evidence because “the
Honourable Chamber is knowledgeable about the tax regime in Türkiye, as it was examined
and ruled upon in previous occasions”.
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REF. FPSD-16448
20.
Notwithstanding the foregoing, the Single Judge recalled that a party that alleges a fact
bears the burden of proving it (cf., art. 13, par. 5 of the Procedural Rules) and pointed out
that the Club cannot simply excuse itself from presenting an argument and/or
substantiating its claim on the assumption that the Football Tribunal has already
examined similar matters. This is all the more important in view of the fact that any ruling
is made on a case-by-case basis i.e., taking into account the particularities of the case and
the documents submitted by the parties.
21.
Given that the Club has failed to provide further evidence to support its assertion
regarding the different tax incidence in Türkiye (i.e., with or without stoppage), the Single
Judge decided that the relevant amount be awarded as it could be interpreted from the
Termination Agreement (i.e., “net of taxes in Türkiye”). The Single Judge determined that
no further distinction should be made at this point, under penalty of jeopardizing the
enforcement of the decision, if necessary.
22.
In conclusion, the Single Judge determined that the Club should be liable to pay to the
Player the total amount of EUR 50,000 net of taxes in Türkiye plus 5% interest p.a. as from
1 July 2024 until the date of payment.
ii. Art. 12bis of the Regulations
23. In continuation, the Single Judge 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.
24. To this end, the Single Judge 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 10 days to cure such breach of contract.
25. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the club. On account of the above and bearing in
mind that this is the second offense by the Club within the last two years, the Single Judge
decided to impose a reprimand on the Club in accordance with art. 12bis par. 4 lit. b) of the
Regulations.
26. In this connection, the Single Judge wished to highlight 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
27. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
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REF. FPSD-16448
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.
28. In this regard, the Single Judge 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.
29. Therefore, bearing in mind the above, the Single Judge 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.
30. 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.
31. The Single Judge 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
32. The Single Judge 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
33. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
34. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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REF. FPSD-16448
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Armin Derlek, is partially accepted.
2.
The Respondent, EMS Yapi Sivasspor, must pay to the Claimant the following amount(s):
- EUR 50,000 net of taxes in Türkiye as outstanding remuneration plus 5% interest p.a.
as from 1 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-16448
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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