Labour Disputes
Texto da decisão
REF 20-01292
Decision of the DRC Judge
passed on 9 December 2020
regarding an employment-related dispute concerning the player Innocent EMEGHARA
BY:
Daan de Jong (Netherlands), DRC Judge
CLAIMANT:
Innocent EMEGHARA, Switzerland
Represented by Bär & Karrer
RESPONDENT:
Fatih Karagümrük SK, Turkey
Represented by Sami Dinç Law Office
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REF 20-01292
I. Facts
1.
On 9 August 2019, the parties concluded an employment contract valid as from the date
of signature until 31 May 2020 “or any later date on which an official match is played in
the respective season”.
2.
The contract stipulated the following economic terms:
"6.1–For 2019/2020 Football Season: 20.000-Euro (Two Hundred Thousands Euros)
-60.000,00-Euro of the abovementioned amount shall be paid to the Player as an
advance payment in 3 days following Turkish Football Federation receives the
International Transfer Certificate (ITC) (...)
-140.000,00-Euro of the aforementioned amount is to be paid to the Player by the Club
as the monthly salary in 10 (ten) equal instalments (10 x 14.000,00-Euro) between the
period August 2019 –May 2020. The monthly salaries are to be paid the last day of the
relevant months."(...)
"6.3 –Living costs of the Player
In addition to the abovementioned amounts, the Club shall pay to the Player 10.000,00Euro in total as living cost in 10 (ten) equal instalments ( 10 x 1.000,00Euro) between the period August 2019 –May 2020 for the 2019/2020
football season during the life of this contract. The living costs instalments are to be
paid the last day of the relevant months. (...)"
3.
On 13 May 2020, the player received a notification from the Respondent, indicati
ng the following:
“(...) we kindly propose the Player to sign an amendment of agreement for making a
discount and reconstructing on the all of the 2019/2020 football seasons remunerations
which determined in the professional football player contract and in case our said
proposal shall not be accepted in 5 (five) days at the latest following the receipt of this
notification, we kindly notify that the Club shall make the unilaterally amendments
for the fair, proportional and reasonable reduction(...)"(...)"(...) we kindly propose the
Player to sign an amendment agreement in order to make a discount at the rate of 30%
to all the remunerations of the 2019/2020 football season
(...)
"Therewith we would like to state that if our Club will promote to
the TFF Super League at the end of the 2019/2020 football season, our Club may
find an opportunity to compensate its financial loss in some measures, the said discount
on
the
Players
remunerations
shall
be
invalid and the agreed discounted amount shall be paid to the Player following to
abovementioned success occurs."
4.
On 14 May, the player sent a notice to the club, indicating that
“there is no justification to retroactively reduce the salary for the entire season”
and that ”the COVID-19 crisis did not exist prior to March 2020”, and stating the
amount of EUR 65,000 was overdue.
5.
On 20 May 2020, the player sent a letter to the club explaining that he is “willing to find
an overall solution concerning the currently overdue amounts and a possible reduction
of some payments due to the COVID-19 crisis” .
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REF 20-01292
6.
On 7 June 2020, the player sent a proposal in relation to the COVID-19 consequences
and “conditional upon the full remaining amount of EUR35,000.00 being paid”
7.
On 12 June 2020, the season in Turkey resumed.
8.
On 11 August 2020, the player sent a default notice to the club, requesting the payment
within 10 days of the outstanding amount of EUR 45,000, detailed as follows:
•
EUR 14,000 for the salary of March 2020
•
EUR 1,000 for the living costs of March 2020
•
EUR 14,000for the salary of April 2020;
•
EUR 1,000 for the living costs of April 2020;
•
EUR 14,000 for the salary of May 2020;
•
EUR 1,000 for the living costs of May 2020.
9. On 11 September 2020, and requested the payment of the outstanding amount of EUR
45,000 as indicated in his default notice, plus 5% interest p.a. as from the due dates.
10. According to the Claimant, “in earlier correspondence, the Club intended to apply a
unilateral salary reduction, invoking as a pretext the COVID-19 pandemic”,
however, “subsequently no longer referred to these "reasons" for its non-payment, but
instead simply chose not to reply to any requests”
11. The player explained that he “does not doubt the seriousness of the current situation and
understand the financial impact caused by the pandemic”. However he specified that “any
unilateral reduction made or attempted by the Respondent was illegitimate for numerous
reasons.
12. The player explained that he made several proposals to the club concerning the COVID-19
effects, but ultimately never entered into a negotiation.
13. The club requested a deadline extension to reply to the claim. However, it failed to
provide its comments after said extension was granted.
II. Considerations of the DRC Judge
1. The
First
of
all,
the
DRC
Judge
(hereinafter
also
referred
to
as Chamber or DRC) analysed whether it was competent to deal with the case at hand.
Taking into account the wording of art. 21 of the June 2020 edition of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
2. Subsequently, the DRC Judge referred to art. 3 par. 1 of the Procedural Rules
and emphasised that, in accordance with art.
24
par.
1
in combination with art.
22 lit. b) of the Regulations on the Status and Transfer of Players, the DRC Judge is
competent to deal with matters which concern employment-related disputes with an
international dimension between players and clubs, such as the present one, which involves
a Swiss player and a Turkish club.
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REF 20-01292
3. In continuation, the DRC Judge analysed which edition of the Regulations of the Status and
Transfer of Players should be applicable to the present matter. In this respect, the DRC Judge
confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and
Transfer of Players, and considering the date when the claim was lodged, the June 2020
edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the
matter at hand.
4. With the above having been established, the DRC Judge entered into the substance of the
matter. In doing so, it started to acknowledge the facts of the case as well as the documents
contained in the file. However, the DRC Judge emphasized that in the following
considerations it will refer only to facts, arguments and documentary evidence which it
considered pertinent for the assessment of the matter at hand.
5. Subsequently, the DRC Judge observed that, on 9 August 2019, the parties concluded an
employment contract valid as from the date of signature until 31 May 2020 “or any later date
on which an official match is played in the respective season”.
6. Thereafter, the DRC Judge noted that the Claimant lodged a claim before FIFA against the
Respondent, and requested the outstanding amount of EUR 45,000, detailed as follows:
•
EUR 14,000 for the salary of March 2020
•
EUR 1,000 for the living costs of March 2020
•
EUR 14,000for the salary of April 2020;
•
EUR 1,000 for the living costs of April 2020;
•
EUR 14,000 for the salary of May 2020;
•
EUR 1,000 for the living costs of May 2020.
7. Conversely, the DRC Judge noted that the Respondent failed to present a substantive
response to the claim of the Claimant, in spite of having been invited to do so. In particular,
the DRC Judge observed that the Respondent indeed requested an extension of the deadline
to reply to the claim, but ultimately failed to provide a substantial response. Thus, by not
presenting its position to the claim, the DRC Judge was of the opinion that the Respondent
renounced its right of defense and, thus, accepted the allegations of the Claimant.
8. Furthermore, as a consequence of the aforementioned consideration, the DRC Judge
concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision
upon the basis of the documentation already on file; in other words, upon the statements
and documents presented by the Claimant.
9. In this respect, the DRC Judge noted that, indeed, the Claimant was contractually entitled
to the following amounts:
"6.1–For 2019/2020 Football Season: 20.000-Euro (Two Hundred Thousands Euros)
-60.000,00-Euro of the abovementioned amount shall be paid to the Player as an advance
payment in 3 days following Turkish Football Federation receives the International Transfer
Certificate (ITC) (...)
-140.000,00-Euro of the aforementioned amount is to be paid to the Player by the Club as the
monthly salary in 10 (ten) equal instalments (10 x 14.000,00-Euro) between the period August
2019 –May 2020. The monthly salaries are to be paid the last day of the relevant months."(...)
"6.3 –Living costs of the Player
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REF 20-01292
In addition to the abovementioned amounts, the Club shall pay to the Player 10.000,00-Euro in
total as living cost in 10 (ten) equal instalments
(
10
x
1.000,00Euro)
between
the
period
August
2019 –May 2020
for
the
2019/2020
football season during the life of this contract. The living costs instalments are to be paid the
last day of the relevant months. (...)"
10. In view of the above, the DRC Judge confirmed that the Claimant’s request was grounded
on the contractual terms agreed between the parties and, as a result, he is entitled to the
following amounts, which are understood as outstanding:
- EUR 14,000 for the salary of March 2020;
- EUR 1,000 for the living costs of March 2020;
- EUR 14,000 for the salary of April 2020;
- EUR 1,000 for the living costs of April 2020;
- EUR 14,000 for the salary of May 2020;
- EUR 1,000 for the living costs of May 2020.
11. Consequently, in strict application of the principle of pacta sunt servanda, the DRC Judge
established that the Respondent has to pay to the Claimant, the total outstanding amount
of EUR 45,000, as agreed in the contract concluded between the parties.
12. Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the DRC Judge decided to award 5% interest p.a. over said
amount as from the applicable due dates (i.e. interest calculated as from the day following
the due date).
13. Furthermore, taking into account the previous considerations, the DRC Judge referred to
par. 1 and 2 of art. 24bis 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.
14. In this regard, the DRC Judge pointed out 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 and for the
maximum duration of three entire and consecutive registration periods.
15. Therefore, bearing in mind the above, the DRC Judge decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from the
moment in which the Claimant, following the notification of the present decision,
communicates the relevant bank details to the Respondent, a ban from registering any new
players, either nationally or internationally, for the maximum duration of three entire and
consecutive registration periods shall become effective on the Respondent in accordance
with art. 24bis par. 2 and 4 of the Regulations.
16. Finally, the DRC 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. 3 of the Regulations.
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REF 20-01292
III. Decision of the DRC Judge
1.
The claim of the Claimant, Innocent EMEGHARA, is accepted.
2.
The Respondent, Fatih Karagümrük SK, has to pay to the Claimant, the following amount:
- EUR 45,000 as outstanding remuneration plus 5% interest p.a. as from the due dates
until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the
relevant bank account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with
this decision to [email protected], duly translated, if applicable, into one of the official
FIFA languages (English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the
Respondent within 45 days, as from the notification by the Claimant of the relevant
bank details to the Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally
or internationally, up until the due amount is paid and for the maximum duration
of three entire and consecutive registration periods. The aforementioned ban
mentioned will be lifted immediately and prior to its complete serving, once the
due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the
end of the ban of three entire and consecutive registration periods, the present
matter shall be submitted, upon request, to the FIFA Disciplinary Committee.
For the DRC Judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF 20-01292
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
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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