DRC Overdue Payables
Texto da decisão
REF. FPSD-8938
Decision of the
Dispute Resolution Chamber
passed on 10 May 2023
regarding an employment-related dispute concerning the player Ioan Hora
BY:
Elvis Chetty (Seychelles)
CLAIMANT:
Ioan Hora, Romania
Represented by YAKUB KIZILKAYA
RESPONDENT:
Elazigspor, Türkiye
Represented by Ercan Sevdimba
pg. 2
REF. FPSD-8938
I.
Facts of the case
1.
On 22 January 2018, the Romanian player, Ioan Hora (hereinafter: the Claimant or player),
and the Turkish club, Elazigspor (hereinafter: the Respondent or club) signed an employment
contract, valid as from 22 January 2018 until 31 May 2018.
2.
Pursuant to clause 1 of the contract, the Claimant was entitled to receive the amount of
EUR 135,000 net as remuneration.
3.
On 28 May 2018, the Claimant lodged a claim against the Respondent at FIFA for
outstanding remuneration under case ref. nr.18-01067. In said case, on 15 November 2017,
a decision was passed by the Dispute Resolution Chamber in favour of the Claimant,
ordering the Respondent to pay to the Claimant the amount of EUR 105.999,99 as
outstanding remuneration.
4.
On 5 August 2019, the Claimant and Respondent concluded a settlement agreement
(hereinafter: settlement agreement), based on which the parties agreed to pay the aforesaid
amount in instalments, according to the payment schedule detailed in article 3 of the
settlement agreement.
5.
On 24 July 2021, as the Respondent never paid any of the instalments as per the settlement
agreement, the Claimant submitted a second claim in front of FIFA against the Respondent.
This case was considered with case ref nr. FPSD-3133 and the decision was given on 6
October 2021, ordering the Respondent to pay to the Claimant the amount of EUR 106,000
as outstanding remuneration.
6.
On 22 January 2023, the Claimant and Respondent concluded a private agreement
(hereinafter: private agreement), based on which the parties agreed to a payment plan.
7. Article 2 of the private agreement, inter alia, stipulated the following:
2.1. The total net amount of 106.000,00 Euros and its interest %5 per year from the due dates
of each payment will be paid to the player.
2.2. The club will make an advance payment of EUR 20.000,00 on or before 24th January 2022
and this amount will be deducted from the total amount.
2.3. With the compliance of the above-given condition (2.2.), the player hereby confirm to inform
FIFA and TFF to lift the transfer ban temporarily for 2021/2022 inter transfer season.
2.5. The remaining balance and all the interests are going to be paid by the club on or before
9th February 2022. The interest will be calculated on the effective payment date.
pg. 3
REF. FPSD-8938
2.6. In the event of the club failure to comply with any obligation set forth herein the LA YER will
be able to notify FIFA DRC to immediately execute the above-mentioned Decision (Ref Nr.
FPSD-3133) regarding the registration ban and, as consequence, all terms herein
established will not be considered valid and the remaining amount shall be paid in full at
once.
8. The Claimant indicated that the Respondent, paid him EUR 20,000 on 24 January 2022.
9. Additionally, the Claimant stated the following:
“The club made a payment of 77,000 Turkish Lira with a cheque (0010151 Serial Number). This
cheque was given on 25th January 2022 and the payment of this cheque was made on 6th May
2022. According to the Turkish Central Bank Indicative Exchange Rates on 6th May 2022, 1 Euro
was equal to 15.70 Turkish Lira. As a result, the payment of 77,000 Turkish Lira was equal to
4,904 Euros on 6th May 2022.”
10. On 4 January 2023, the Claimant put the Respondent in default and requested payment of
the amount of EUR 91,391 setting a 10 days’ time limit in order to remedy the default.
II. Proceedings before FIFA
11. On 17 January 2023, 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
12. According to the Claimant, the Respondent has never followed its promises although it has
been warned many times. “The player showed good faith against the club many times to make
their work easy and let them pay the balance in installments. However, the club has always
breached the agreements and abused the good faith of the player. This claim is the third case
which is presented by the player.”
13. The requests for relief of the Claimant, were the following:
i)
ii)
iii)
iv)
Order that the Respondent shall pay to the player 91,391 Euros + %5 interest per
annum starting from 9th February 2022,
Impose a fine against the club pursuant to Article 12bis
Impose a ban against club from registering any new players, either nationally or
internationally, for two registration periods pursuant to Article 12bis of the RSTP
Order that if and so far, the amounts as mentioned over is not paid to the Player
within the prescribed time limit, Article 24 of RSTP shall be imposed against the club.
pg. 4
REF. FPSD-8938
b. Position of the Respondent
14. In its reply, the Respondent argued mentioned that it made several payments to the
Claimant and in this regard provided the following payment receipts:
-
Payment receipt dated 24.01.2022 in the amount of 20.000.-EUR
Payment receipt dated 05.08.2019 in the amount of 6.220.-TL correspondi.ng to 1000.-EUR
Payment receipt dated 05.08.2019 in the amount of 5.598.-TL corresponding to 900.-EUR
15. The Respondent further argued that it delayed payments due to reasons beyond its control
i.e., fluctuating of the exchange rate and the state of emergency declared in Turkey due to
the earthquake of 6 February 2023.
16. In conclusion the Respondent requested the following relief:
(a) “decide judgment of dismissal about the present case and the rejection of all requests of the
Claimant Player
(b) to make a decision that the judicial costs and the attorneyship fees that the Respondent is faced
with shall be paid by the Claimant. If not, to award a minimum amount of procedural cost in
connection with the temporary amendment to the Procedural Rules declared with the Circular
1720.”
pg. 5
REF. FPSD-8938
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single Judge) analysed whether he was competent to deal with the case at hand. In this
respect, he took note that the present matter was presented to FIFA on 17 January 2023
and submitted for decision on 10 May 2023. Taking into account the wording of art. 34 of
the March 2023 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.
18. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 23 par. 2 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players October 2022 edition), the Single Judge
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Romanian player and a club from
Türkiye.
19. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (October 2022 edition) and
considering that the present claim was lodged on 17 January 2023, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
20. 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 he 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
21. His 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 he will refer only to the facts, arguments, and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
pg. 6
REF. FPSD-8938
i. Main legal discussion and considerations
22. The foregoing having been established, the Single Judge moved to the substance of the
matter and took note that the parties strongly dispute the total amount that was
outstanding and due to the Claimant as per the private agreement concluded between the
parties on 22 January 2023.
23. In this context, the Single Judge acknowledged that his task was to determine whether the
amounts claimed by the Claimant had indeed already fallen due and were to be paid by
the Respondent.
24. The Single Judge noted that in its submission, the Respondent did not contest that the
amounts are due to the Claimant but argued that it could not pay the Claimant due to
circumstances beyond its control, as well as indicating that it made certain payments to the
Claimant and submitted evidence linked thereto.
25. In this context the Single Judge made reference to the payment receipts submitted by the
Respondent and observed that two of the payment receipts relates to payments made to
the Claimant in 2019, and that the third payment relates to a payment already confirmed
by the Claimant, therefore the Single Judge decided that it shall be disregarded, and not
taken into account in the assessment of this matter.
26. The Single Judge, therefore mentioned that the arguments raised by the Respondent
cannot be considered a valid reason for non-payment of the monies claimed by the
Claimant, in other words, the reasons brought forward by the Respondent in its defence
do not exempt the Respondent from its obligation to fulfil its contractual obligations
towards the Claimant and accordingly decided to reject the argumentation put forward by
the Respondent in its defence.
27. Finally, taken all of the above into account the Single Judge concluded that the Respondent
was indeed in arrears of its financial obligations as per the private agreement and is thus
to be held liable for the consequences thereof.
ii. Consequences
28. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of the private agreement committed by the
Respondent.
29. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant the
outstanding amount of EUR 91,391.
pg. 7
REF. FPSD-8938
30. What is more, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the Single Judge decided to award 5% interest p.a. on the above
amounts as from 10 February 2022.
iii. Art.12bis of the Regulations
31. In continuation, bearing in mind the foregoing considerations, 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. In this respect, the Single
Judge confirmed that the Respondent failed to comply with its financial obligations in line
with the contract, without a prima facie justification, and was duly notified of the
contractual breach by the Claimant, who granted the Respondent at least 10 days to cure
its default, to no avail.
32. The Single Judge established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent.
33. Moreover, the Single Judge referred to art. 12bis par. 6 of the Regulations, which
establishes that a repeated offence will be considered as an aggravating circumstance and
lead to a more severe penalty.
34. Bearing in mind the above and taking into account that this is a first offense of the
Respondent in the past two years, the deciding body decided to impose a warning on the
Respondent.
iv. Compliance with monetary decisions
35. 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.
36. 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.
37. 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
pg. 8
REF. FPSD-8938
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.
38. 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.
39. 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
40. 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.
41. 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.
42. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 9
REF. FPSD-8938
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ioan Hora, is accepted.
2.
The Respondent, Elazigspor , must pay to the Claimant the following amount(s):
- EUR 91,391 as outstanding remuneration plus 5% interest p.a. as from 10 February 2022
until the date of effective payment
3.
A warning is imposed on the Respondent.
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. 10
REF. FPSD-8938
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).
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pg. 11