Labour Disputes
Texto da decisão
REF. FPSD-16812
Decision of the
Dispute Resolution Chamber
passed on 27 January 2025
regarding an employment-related dispute concerning the Player Mame
Biram Diouf
BY:
Angela Collins, Australia
CLAIMANT:
Mame Biram Diouf, Senegal
Represented by Ercan Sevdimbaş
RESPONDENT:
Tumosan Konyaspor, Türkiye
pg. 2
REF. FPSD-16812
I. Facts of the case
1.
On 1 September 2022, the Senegalese player Mame Biram Diouf (hereinafter: the Player or
the Claimant) and the Turkish club Tumosan Konyaspor (hereinafter: the Club or the
Respondent) entered into an employment contract (hereinafter: the Contract) valid as from
the signing date until 31 May 2023.
2.
Pursuant to clause 3 of the Contract, the Club undertook to pay the Player (i) EUR 50,000
as down payment within 15 days of signing the Contract; and (ii) EUR 592,000 payable in 10
monthly instalments of EUR 59,200 each from October 2022 to July 2023.
3.
Clause 3, par. 1 of the special provisions stipulated in the Contract provides as follows:
“Amounts mentioned under this contract are net of Turkish taxes. The Club is obliged to
pay the income tax withholding tax that will arise from the net remunerations 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
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 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 22 April 2024, the Player sent a warning letter to the Club (hereinafter: the Warning
Letter), in which he referred to the aforementioned provision on taxes, as demanded the
following:
“It has been signed that the amount corresponding to the income tax to be paid by the
Client Drawer Player will be paid by the Drawee Club to the Client Drawer Player in
accordance with the above-mentioned relevant article of the Professional Football Player
Agreement concluded between the Parties. The income tax to be paid by the Client Drawn
Football Player is 5.095.668,06-TL. Regarding this, the accrual slip numbered
2024040401BÍ90000130 of the Ministry of Treasury and Finance is attached to you
(ANNEX- 1). The Drawee Club will be responsible for 2.446.600,88-TL of the fee accrued
under the Professional
Football Player Agreement registered with the TFF between the Drawee Club and the
Client Drawer Player.
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REF. FPSD-16812
In light of the explanations made above, we hereby notify you that the amount in
question should be paid in 30 days to the Player's bank account in your Club's records,
as of the notification of this notice to you”.
II. Proceedings before FIFA
5.
On 30 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 recalled that the Contract provided for the payment of his salary net of any
taxes. The Player also pointed out that the Club undertook to pay the income tax due on
his remuneration.
7.
Consequently, the Player requested that he be reimbursed the amount of TRY 2,545,227.58
in taxes and TRY 601,946.32 in default interest, plus 4.5% interest per month as from the
date of payment to the Turkish authorities (26 September 2024) until the date of effective
payment by the Club.
8.
In support of his claim, the Player submitted (i) the Contract; (ii) his annual income tax
declaration; (iii) the Warning Letter; (iv) the wording of art. 51 of the Turkish Law no. 6813;
and (v) a tax collection receipt issued by the Turkish Tax Office.
9.
The Player requested the following relief:
“7.1 The Claimant requests your Honorable Board to order the Club to pay to the Player
the amount of 2.545.227,58-TL paid under public pressure and 601.946,32-TL of late
payment interest, in the total amount of 3.147.173.90-TL. together with 4.5% monthly
late payment interest from the date of the Player's payment to the tax office (26.09.2024)
until the effective payment in accordance with Turkish Law No. 6183”.
b. Position of the Club
10. On 9 December 2024, the Club responded to the Player’s claim.
11. The Club did not dispute that the Player was entitled to a refund of his personal income tax
but argued that such a refund could only be claimed after the Player had paid such sums
himself and provided proof of payment.
12. The Club emphasised that the Warning Letter had been issued prior to the Player’s alleged
payment to the tax authorities and that the Player had not subsequently contacted the
Club. Therefore, the Club argued that it was not liable for any repayment.
pg. 4
REF. FPSD-16812
13. In the alternative, the Club maintained that the actual amount of income tax due on the
Player’s income was TRY 2,446,600.88 instead of the claimed TRY 2,545,227.58. In this
regard, the Club stated that:
•
The tax receipt submitted by the Player was illegible and the amount of tax could
not be properly read. He also failed to provide any other breakdown;
•
The amount of the Player’s total income tax accrued also included his income
from other employers or sources;
•
The Warning Letter stated TRY 2,446,600.88 instead of the TRY 2,545,227.58, thus
preventing the Player from increasing his claim (venire contra factum proprium);
•
The TRY 2,446,600.88 corresponded to the tax report provided by the Club from
an online tax calculator, which contained the following breakdown:
“Amount of Income Subject to Tax (Basis)
Calculated Income Tax
Taxes Paid by Withholding
Minimum Wage Exception (GVK Art. 23/18)
Taxes Paid in Foreign Countries
Income Tax to be Paid
Tax to be Reimbursed
Stamp Duty to be Paid
12.959.773,81
5.030.090,52
2.584.288,64
0,00
0,00
2.446.620,88
0,00
467,20”
14. In light of the foregoing, the Club denied any liability but stated that any award should be
limited to TRY 2,446,600.88.
15. The Club also denied that it owed the Player any interest for late payment. The Club stated
that Turkish Law was not applicable to the case and that the provision cited by the Player
related to public claims had no connection to the case.
16. The Club then requested that the Player’s claim for interest be rejected.
17. The Club’s requests for relief were as follows:
“In light of the explanations given above, the Respondent hereby respectfully requests
from the Honorable Chamber:
a. to reject the claims of the Claimant in full,
b. or in subsidiary order: (a) to order that the Respondent cannot be held liable to
reimburse the late payment interests, (b) to order that the maximum amount of income
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REF. FPSD-16812
tax the Respondent can be held liable to reimburse is 2.446.600,88.-TL and (c) to order
that only an interest in the rate of 5% per annum can apply”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter: the Single Judge)
analysed whether she was competent to deal with the case at hand. In this respect, she
took note that the present matter was presented to FIFA on 30 October 2024 and submitted
for decision on 27 January 2025. Taking into account the wording of art. 34 of the January
2025 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.
19. 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 on the Status and Transfer of Players (hereinafter: the Regulations) (January
2025 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 Senegalese player and a Turkish club.
20. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with its art. 29,
the January 2025 edition of the Regulations is applicable to the matter at hand as to the
substance.
b. Burden of proof
21. 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 she 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
22. 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
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REF. FPSD-16812
considerations she will refer only to the facts, arguments and documentary evidence,
which she considered pertinent for assessing the matter at hand.
i. Main legal discussion and considerations
23. The Single Judge then moved to the substance of the matter, noting that it concerned a
claim for reimbursement of taxes.
24. On the one hand, the Single Judge found that the Player claimed to be entitled to the sum
of TRY 3,147,173.90 (i.e., TRY 2,545,227.58 as the principal amount plus TRY 601,946.32 as
interest for late payment), corresponding to the reimbursement of the taxes paid for the
period during which he was employed by the Club.
25. The Club, on the other hand, contended that the claim should be dismissed because the
Player did not send a proper notice of default after making the payment to the tax
authorities. In the alternative, the Club sustained that any refund should be limited to TRY
2,446,600.88 and that any interest on arrears should be excluded.
26. In this context, the Single Judge considered that her task was to determine whether the
Player is in fact entitled to a refund of his personal income tax and default interest.
A. The Player’s right to a refund of the personal income tax
27. As a starting point, the Single Judge recalled that clause 3, par. 1 of the special provisions
stipulated in the Contract reads as follows:
“Amounts mentioned under this contract are net of Turkish taxes. The Club is
obliged to pay the income tax withholding tax that will arise from the net
remunerations 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 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
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 Single Judge)
pg. 7
REF. FPSD-16812
28. The Single Judge then ruled that the Player was indeed entitled to a refund of the personal
income tax incurred, as clearly provided for in the aforementioned clause (in claris non fit
interpretation).
29. At this point, whilst the Single Judge accepted that the clause required the Player to give
notice of default to the Club following the payment (which was not formally complied with),
the Single Judge found that the Club was still liable for the payment – albeit with a special
consideration in relation to the calculation of the interest (see item B, infra).
30. Notwithstanding the above, the Single Judge upheld the Club’s alternative position that the
amount claimed by the Player was not entirely clear. Indeed, the Single Judge noted that
the annual income tax return submitted by the Player referred only to the withheld income
tax (i.e., TRY 2,584,288.64) and did not confirm the additional accrued tax that the Player
was required to pay.
31. In the same vein, the Single Judge found that the tax collection receipt submitted by the
Player, in addition to being almost illegible, only referred to a payment of TRY 3,147,173
without any corresponding breakdown. In the Single Judge’s view, the Player also failed to
explain in his submission how he arrived at the claimed amount of TRY 2,545,227.58.
32. The Single Judge therefore concluded that the only evidence that could support the amount
of income tax owed by the Club to the Player was the breakdown of the tax calculator
attached to its response. The Single Judge was also reassured by the fairness of this
proposal, given that the amount reported by the Club was the same as the amount
originally claimed by the Player in the Warning Letter.
33. The Single Judge then decided that the Player was entitled to a refund of TRY 2,446,600.88.
B. The Player’s right to a refund of the default interest
34. The Single Judge then turned to the amount claimed as default interest.
35. Accordingly, the Single Judge first emphasised that the Contract already provided that (i)
the Player should pay any taxes to the Turkish authorities and then claim reimbursement
from the Club; and (ii) the Club would not be liable for any interest or penalties resulting
from the Player’s failure to comply with this obligation.
36. Consequently, the Single Judge rejected the Player’s claim in respect of the TRY 601,946.32.
37. Secondly, as the Player did not put the Club in default after the payment to the Turkish
authorities in September 2024, that Single Judge also determined that the claim be
considered as his first notice to the Club. Therefore, and in order to protect the contractual
freedom of the parties, the Single Judge decided that the interest on the outstanding
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REF. FPSD-16812
amount (TRY 2,446,600.88) be calculated from the 31st day following the date of the claim
(i.e., 1 December 2024) until the date of the actual payment.
38. For the sake of completeness, the Single Judge also outlined that the interest rate cited by
the Player had no contractual basis and could not be proved by a mere reference to an
isolated screenshot of a provision of national law.
39. The Single Judge then decided that default interest at the rate of 5% p.a. be applied to this
case.
ii. Compliance with monetary decisions
40. 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
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 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.
42. 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.
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 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
45. 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,
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REF. FPSD-16812
or match agent”. Accordingly, the Single Judge decided that no procedural costs were to be
imposed on the parties.
46. 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.
47. Lastly, the Single Judge rejected any other requests for relief made by any of the parties.
pg. 10
REF. FPSD-16812
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Mame Biram Diouf, is partially accepted.
2.
The Respondent, Tumosan Konyaspor, must pay to the Claimant TRY 2,446,600.88 as
outstanding remuneration plus 5% interest p.a. as from 1 December 2024 until the date
of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
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.
6.
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.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 11
REF. FPSD-16812
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
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 12