Labour Disputes
Texto da decisão
REF. FPSD-13429
Decision of the
Dispute Resolution Chamber
passed on 21 March 2024
regarding an employment-related dispute concerning the player Artem
Dziuba
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairperson
Alejandro Atilio Taraborelli (Argentina), Member
Gonzalo de Medinilla (Spain), Member
CLAIMANT:
Artem Dziuba, Russia
Represented by Inna Elizarova
RESPONDENT:
Yukatel Adana Demirspor A.S., Türkiye
Represented by Umur Varat
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REF. FPSD-13429
I. Facts of the case
1.
On 3 November 2022, the Russian player Artem Dziuba (hereinafter: Player or Claimant)
and the Turkish club Yukatel Adana Demirspor A.S. (hereinafter: Club or Respondent)
signed a mutual termination agreement in order to terminate the employment relationship
previously maintained between them and settle the financial consequences arising thereto
(hereinafter: Termination Agreement).
2.
Pursuant to clause 3 of the Termination Agreement, the Club undertook to pay the Player
the total amount of EUR 400,000 net, as follows:
•
•
•
•
3.
EUR 100,000 on 30 November 2022;
EUR 100,000 30 December 2022;
EUR 100,000 on 28 January 2023; and
EUR 100,000 on 25 February 2023.
In addition, the same clause 3 of the Termination Agreement reads as follows:
“All payments to be made by the Club to the Player under this Mutual Termination
Agreement shall be made free and clear of, and without deduction or withholding from
or on account of tax in order to ensure that the Player receives a net amount. In case of
any late or non-payment, Club shall pay monthly %5 interest for the delayed amount.
In case of delay of payment of any instalments of the Termination Payment, in part or in
full, for any reason for more than 45 days, the Player will be entitled to claim all the rest
unpaid instalments of the Termination Payment immediately, without waiting for them
to become due”.
4.
By correspondence dated 14 November 2023, the Player acknowledged that all instalments
under the Termination Agreement had been received late. Therefore, he requested the
Club to pay him EUR 38,139 as applicable interest.
II. Proceedings before FIFA
5.
On 22 January 2024, the Player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Player
6.
In his claim, the Player explained that the Club paid all his dues with delay, triggering the
interest clause included in the Termination Agreement. Therefore, he requested to be
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REF. FPSD-13429
awarded EUR 38,139 as interests (i.e., 5% per month as from each due date until the date
of effective payment).
7.
Furthermore, the Player referred to art. 12bis of the FIFA Regulations on the Status and
Transfer of Players (RSTP) and requested that sporting sanctions be imposed on the Club.
b. Position of the Club
8.
On 29 February 2024, the Club replied to the Player’s claim.
9.
In doing so, the Club acknowledged having delayed the payments owed to the Player,
however argued that it was prevented to make the payment in time due to financial impact
of the earthquake in Türkiye and especially the city of Adana. The Club pointed out to the
fact that a state of emergency was declared on 8 February 2023, as well as the national
currency had depreciated by more than 50%. Likewise, it recalled its good reputation when
it comes to financial obligations and stated that it acted in good faith towards the Player by
remedying the debt even if with some delay.
10. Given the above, the Club requested that the claim be rejected. Alternatively, it challenged
the calculation of the Player as follows:
•
the interest over the third instalment of the Termination Agreement was
miscalculated and should be limited to EUR 5,967 (i.e., delayed for 37 days);
•
the interest over the fourth instalment of the Termination Agreement was also
miscalculated. The first half should be limited to EUR 12,777.42 (i.e., delayed for
151 days) and the second half to EUR 15,887.10 (i.e., delayed for 197 days).
•
In totum, the Player claimed excessive EUR 720.28.
11. Subsequently, the Club also requested that the interest rate be reduced insofar as
excessive, and art. 12bis of the RSTP not applied.
12. The requests for relief of the Club were as follows:
“1- To reject all the claims of Claimant.
2- If the Tribunal decides to accept the case, Respondent requests from Tribunal to
reduce the interest rate of 5%monthly interest,
3- If the Tribunal decides not to reduce the rate of %5 monthly interest, then
Respondent request to accept Respondent’s calculation for interest,
4- To order to pay Claimant to pay judicial cost and attorney fee to the
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REF. FPSD-13429
Respondent/Counter Claimant.
5- To dismissal of sanctions to be imposed on the Respondent Club in accordance with
Article 12Bis (2) of the FIFA Regulations on the Status and Transfer of Players (RSTP)”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. First of all, the Dispute Resolution Chamber (hereinafter: 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 22 January 2024 and submitted for decision
on 21 March 2024. Taking into account the wording of art. 34 of the March 2023 edition of
the Procedural Rules Governing the Football Tribunal (hereinafter: Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
14. 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 RSTP
(February 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 Russian player and a Turkish club.
15. 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 RSTP (February 2024 edition), and considering that the present claim was
lodged on 22 January 2024, the May 2023 edition of said regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
16. 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
17. Its competence and the applicable regulations having been established, 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
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REF. FPSD-13429
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
18. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that it pertains to a claim for interest only.
19. The DRC noted that it remained undisputed between the parties that the Club paid all the
instalments under the Termination Agreement, however with delay. In particular, the Club
(i) argued that the interest rate fixed by the parties was excessive; and (ii) referred to the
earthquake in Türkiye and the financial damages suffered to justify its default.
20. Against this background, the DRC deemed that its task was to establish whether the Player
was entitled to the interest claimed, calculated as from each due date until the date of the
effective payment by the Club.
21. With the above in mind and as a departure point, the Chamber recalled its well-established
jurisprudence according to which parties are free to set out particular interest rates in their
contracts, however such rate cannot exceed the threshold of 18% per annum.
Consequently, the DRC was firm to determine that the 5% interest per month stipulated by
the parties was excessive, hence should be reduced.
22. In continuation, the Chamber turned its attention to the Club’s allegations as to effects of
the earthquake in its finances. In doing so, the DRC found it essential that the Termination
Agreement was concluded far before the earthquake took place in Türkiye (i.e., 6 February
2023). Indeed, the first three instalments of said Termination Agreement had already fallen
due at an earlier stage, which led to the conclusion that the argumentation of the Club was
flawed.
23. By the same token, the DRC observed that the Club failed to provide any documentary
evidence supporting the alleged impossibility to perform the payments under the
Termination Agreement and/or any attempt to avoid litigation by reaching an amicably
solution with the Player. Conversely, the Chamber acknowledged that the Club has been
recently involved in multiple transactions in TMS, therefore pursuing its footballing
activities with seemingly normality.
24. By way of conclusion, the Chamber decided that the reasons invoked by the Club could not
succeed, hence the Player should be entitled to the interests sought in line with the general
legal principle of pacta sunt servanda and broken down as follows:
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REF. FPSD-13429
Interest rate
From
Total
Applicable
(%)
(Date)
Days
interest
EUR 100,000
18
30/11/2022
19/12/2022
19
EUR 936.99
EUR 100,000
18
30/12/2022
03/01/2023
4
EUR 197.26
EUR 100,000
18
28/01/2023
06/03/2023
37
EUR 1,824.66
EUR 50,000
18
25/02/2023
27/07/2023
152
EUR 3,747.95
EUR 50,000
18
25/02/2023
11/09/2023
198
EUR 4,882.19
Amount
To (Date)
TOTAL
EUR 11,589.05
25. By way of conclusion, the Chamber decided that the claim of the Player should be partially
accepted. For completeness, the DRC deemed that due to the particular factual framework
of the case and especially the fact that the Club complied with the main obligation, art.
12bis of the Regulations was not applicable to the case at hand.
ii. Compliance with monetary decisions
26. 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.
27. 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.
28. 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 Respondent in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
29. 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.
30. 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.
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REF. FPSD-13429
d. Costs
31. 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.
32. 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.
33. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-13429
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Artem Dziuba, is partially accepted.
2.
The Respondent, Yukatel Adana Demirspor A.S., must pay to the Claimant EUR 11,589.05
as outstanding remuneration.
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
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REF. FPSD-13429
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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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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