Dispute Resolution Chamber
Texto da decisão
REF FPSD-2342
Decision of the
DRC Judge
passed on 16 June 2021
regarding an employment-related dispute concerning the player Guido Gabriel Herrera
BY:
Alexandra Gómez Bruinewoud (Uruguay) / (Netherlands), DRC Judge
CLAIMANT:
Guido Gabriel Herrera, Argentina
Represented by Ariel N. Reck
RESPONDENT:
Yeni Malatyaspor, Turkey
Represented by Mr Burak Cakir
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REF FPSD-2342
I.
FACTS OF THE CASE
1.
On 1 September 2020, the Argentine player, Guido Gabriel Herrera (hereinafter: the
Claimant or Player) and the Turkish club, Yeni Malatyaspor (hereinafter: the Respondent or
Club) concluded a “loan employment contract” valid until 31 May 2021 (hereinafter: the
Contract).
2.
On 19 December 2020, the parties signed a “Financial Clearance and Termination of Loan
Agreement” (hereinafter: the Termination Agreement) by means of which they decided to
mutually terminate the contract.
3.
According to the termination agreement, the Respondent undertook to pay the player a
total amount of USD 75,000 as follows:
“15.000 USD 21st December 2020;
5.000 USD 25th December 2020;
25.000 USD 28th February 2020;
20.000 USD 30th March 2021;
10.000 USD 30th April 2021.”
4.
On 1 March 2021, the player put the club in default and requested the payment of the first,
second and third instalment as per the termination agreement within 10 day, however to
no avail.
II.
PROCEEDINGS BEFORE FIFA
5.
On 21 April 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
The claim of the Claimant
6.
The Claimant explained that - despite having agreed on a lower amount to be paid by the
Respondent compared to the outstanding remuneration he was entitled to at the time the
termination agreement was concluded – the Respondent failed to comply with its financial
obligations as per the termination agreement.
7.
The requests for relief of the Claimant, as amended, were the following:
Payment of the total amount of USD 75,000 as per the termination agreement plus
5% interest p.a. as from the due dates.
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b.
Position of the Respondent
8.
In its reply, the club affirmed that it “paid 9.300,00 USD for termination agreement on 21th
December 2020 regarding first instalment. This amount should be deducted from the total
amount of overdue payment.” and requested that the amount of USD 9,300 that was
already paid to the player on 21 December 2020, to be deducted from the claimed amount.
III.
CONSIDERATIONS OF THE DRC JUDGE
a.
Competence and applicable legal framework
9.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter also referred to as DRC
Judge) analysed whether she was competent to deal with the case at hand. In this respect,
it took note that the present matter was presented to FIFA on 21 April 2021 and submitted
for decision on 16 June 2021. Taking into account the wording of art. 21 of the 2021
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.
10.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit.
a) and b) of the Regulations on the Status and Transfer of Players (edition February 2021),
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
Argentinean player and a Turkish club.
11.
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 Regulations on the Status and Transfer of Player (edition February 2021), and
considering that the present claim was lodged on 21 April 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
12.
The DRC judge recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which she may consider
evidence not filed by the parties.
13.
In this respect, the DRC judge also recalled that in accordance with art. 6 par. 3 of Annexe
3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
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c.
14.
Merits of the dispute
The competence of the DRC judge and the applicable regulations having been established,
the DRC judge entered into the merits of the dispute. In this respect, the DRC judge started
by acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC judge emphasised that in the following
considerations, she 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
15.
The foregoing having been established, the DRC judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute what the total amount
of overdue payables as per the termination agreement is.
16.
In this context, the DRC judge acknowledged that it her task was to determine which
amounts as per the settlement agreement had been paid by the Respondent and/or
acknowledged by the Claimant.
17.
In this respect, the DRC judge noted that the Claimant, after having requested to do so,
acknowledged that the out of the total amount of USD 75,000 which was due as per the
termination agreement, the Respondent had effectively paid to him an amount of USD
9,300.
18.
Following the above conclusion, the DRC judge established that – without valid reason - an
amount of USD 65,700 as per the termination agreement concluded between the parties,
remained outstanding.
ii. Consequences
19.
Having stated the above, the DRC judge turned her attention to the question of the
consequences of such unjustified breach of the termination agreement committed by the
Respondent.
20.
Consequently, the DRC judge decided that in accordance with the general legal principle
of pacta sunt servanda, the Respondent is liable to pay to the Claimant the amount of USD
65,700, plus interest at the rate of 5% p.a. as follows:
over the amount of USD 5,700 as from 22 December 2020 until the date of effective
payment;
over the amount of USD 5,000 as from 26 December 2020 until the date of effective
payment;
over the amount of USD 25,000 as from 29 February 2020 until the date of effective
payment;
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over the amount of USD 20,000 as from 31 March 2021 until the date of effective
payment;
over the amount of USD 10,000 as from 1 May 2021 until the date of effective payment.
iii. Compliance with monetary decisions
21.
Finally, taking into account the consideration under number 20. above, the DRC judge
referred to par. 1 lit. and 2 of art. 24bis of the Regulations, which stipulate that, with her
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.
22.
In this regard, the DRC 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.
23.
Therefore, bearing in mind the above, the DRC 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.
24.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
25.
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. 8 of the Regulations.
d.
Costs
26.
The DRC judge referred to article 18 par. 2 of the Procedural Rules, according to which
“DRC proceedings relating to disputes between clubs and players in relation to the
maintenance of contractual stability as well as international employment related disputes
between a club and a player are free of charge”. Accordingly, the DRC judge decided that
no procedural costs were to be imposed on the parties.
27.
Likewise and for the sake of completeness, the DRC judge recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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28.
Lastly, the DRC 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 DRC Judge
1.
The claim of the Claimant, Guido Gabriel Herrera, is accepted.
2.
The Respondent, Yeni Malatyaspor, has to pay to the Claimant USD 65,700 as outstanding
remuneration plus 5% interest p.a. calculated as follows:
- Over the amount of USD 5,700 as from 22 December 2020 until the date of effective
payment;
- Over the amount of USD 5,000 as from 26 December 2020 until the date of effective
payment;
- Over the amount of USD 25,000 as from 29 February 2020 until the date of effective
payment;
- Over the amount of USD 20,000 as from 31 March 2021 until the date of effective
payment;
- Over the amount of USD 10,000 as from 1 May 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 set out in the
enclosed Bank Account Registration Form.
5.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not paid 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 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 paid by the end of
the of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
7.
This decision is rendered without costs.
For the DRC Judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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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:
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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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