DRC Overdue Payables
Texto da decisão
REF FPSD-3052
Decision of the
Dispute Resolution Chamber
passed on 6 October 2021
regarding an employment-related dispute concerning the player Gaber
Dobrovoljc
BY:
Alexandra Gomez Bruinewoud (The Netherlands/Uruguay)
CLAIMANT:
Gaber Dobrovoljc, Slovenia
Represented by Dejan Stefanovic
RESPONDENT:
Fatih Karagumruk AS, Turkey
Represented by Sami Dinc
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REF FPSD-3052
I.
Facts of the case
1.
On 19 August 2019, the Slovenian Player, Gaber Dobrovoljc (hereinafter: the Claimant) and
the Club, Fatih Karagumruk A.Ş. (hereinafter: the Respondent), concluded a contract with
validity until 30 June 2021.
2.
On 30 September 2020, the parties decided to terminate their employment relationship by
signing a settlement agreement (hereinafter: the Settlement).
3.
According to Clause 2 of the Settlement:
“KARAGUMRUK shall pay to the Player Eur 120,000 in total (…) in eight instalments as shown
below:
-
EUR 15,000: 31.10.2020
EUR 15,000: 30.11.2020
EUR 15,000: 31.12.2020
EUR 15,000: 31.01.2021
EUR 15,000: 28.02.2021
EUR 15,000: 31.03.2021
EUR 15,000: 30.04.2021
EUR 15,000: 31.05.2021”
4.
On 25 June 2021, the Respondent paid to the Claimant EUR 45,000.
5.
On 1 July 2021, the Claimant sent a notice to the Respondent requesting the payment of EUR
75,000 and granting a deadline of 10 days to comply, to no avail.
II. Proceedings before FIFA
6.
On 15 July 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
7.
According to the Claimant, the Respondent has failed to comply with the Settlement and that
it has only paid the amount of EUR 45,000 paid on 25 June 2021.
8.
The Claimant’s requests for relief are:
“CLAIMANT ASKS for ruling against the Respondent as follows:
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To accept the present claim and sanction the club in the case of immediate non-payment of
EUR 75,000 net plus interest from 1. 7. 2021, all in line with the article 12bis of FIFA RSTP”.
b. Position of the Respondent
9.
According to the Respondent, “despite the claims of the Claimant, the Club had made several
payments to the Claimant and the proposed amount is not reflecting the true amounts”.
10. In support if this, the Respondent provided the proof of payment dated 25 June 2021 in the
amount of EUR 45,000.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as 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 15 July 2021
and submitted for decision on 6 October 2021. Taking into account the wording of art. 34
of the October 2021 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.
12. Subsequently, 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 lit. b) of the Regulations on
the Status and Transfer of Players (August 2021 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 Slovenian player and a Turkish club.
13. Subsequently, the Single Judge 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 Player (August 2021 edition), and
considering that the present claim was lodged on 15 July 2021, the February 2021 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
14. 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 it may consider evidence
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not filed by the parties, including without limitation the evidence generated by or within the
Transfer Matching System (TMS).
c. Merits of the dispute
15. Her competence and the applicable regulations having been established, 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 it will refer only to the facts, arguments and documentary evidence, which it
considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
16. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the Claimant filed the claim at hand requesting
outstanding amounts only.
17. In this context, the Single Judge acknowledged that her task was to determine whether the
Claimant was indeed entitled the amounts claimed.
18. The Single Judge observed that in accordance with the Settlement, the Respondent was
obliged to pay the Claimant the total amount of EUR 120,000. Moreover, based on the
evidence submitted by both parties, the Single Judge noted that the Respondent had paid
the amount of EUR 45,000 only.
19. Hence, the Single Judge noted that at the time of the claim the Respondent owed to the
Claimant the total amount of EUR 75,000 corresponding to five instalments as agreed in
clause 4 of the Settlement.
20. Furthermore, the Single Judge could observe that the Claimant put the Respondent in default
for the due amount, granting a deadline of 10 days to comply.
21. On account of the aforementioned, the Single Judge established that the Respondent,
without any valid reason, breached the terms of the Settlement and failed to remit to the
Claimant the total amount of EUR 75,000.
22. The Single Judge determined that in accordance with the general legal principle of pacta sunt
servanda, the Respondent was to pay the amount of EUR 75,000 as outstanding amount to
the Claimant.
23. Furthermore, taking into consideration the Claimant’s request as well as the constant practice
of the Football Tribunal in this regard, the Single Judge decided to award the Claimant interest
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on said compensation at the rate of 5% p.a. as of 1 July 2021 until the date of effective
payment
ii. Consequences under art. 12bis of the Regulations
24. Lastly, the Single Judge acknowledged that the Claimant put the Respondent in default for
the due amount, granting a deadline of 10 days to comply, to no avail. Hence, she confirmed
that the requisites for the application of the consequences of article 12bis of the Regulations
had been duly met. To this end, 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.
25. Consequently, the Single Judge concluded that the Claimant had duly proceeded in
accordance with art. 12bis par. 3 of the Regulations, which stipulates that the creditor (player
or club) must have put the debtor club in default in writing and have granted a deadline of
at least ten days for the debtor club to comply with its financial obligation(s).
26. On account of the aforementioned considerations, and bearing in mind that that the
Respondent failed to pay the amount due to the Claimant, the Single Judge established that
the Respondent had delayed a due payment for more than 30 days without a prima facie
contractual basis.
27. The Single Judge established that in virtue of art. 12bis par. 4 of the Regulations she has
competence to impose sanctions on the Respondent. Therefore, and considering that the
Respondent is not a repeated offender with regards to the cited provision, the Single Judge
decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of
the Regulations.
28. In this respect, 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
29. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24bis
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.
30. 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
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maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
31. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must
pay the full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, 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
Respondent in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
32. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form, which is attached to the
present decision.
33. 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. 24bis par.
8 of the Regulations.
d. Costs
34. 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.
35. 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.
36. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Gaber Dobrovoljc, is accepted.
2. The Respondent, Fatih Karagumruk AS, has to pay to the Claimant, the following amount:
- EUR 75,000 as outstanding amount plus 5% interest p.a. as from 1 July 2021 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 (August 2021
edition), 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. A warning is imposed on the Respondent.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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