Labour Disputes
Texto da decisão
REF FPSD-3285
Decision of the
Dispute Resolution Chamber
passed on 27 October 2021
regarding an employment-related dispute concerning the player Marco Jevtovic
BY:
Jon Newman (USA), DRC Judge
CLAIMANT:
Marco Jevtovic, Serbia
RESPONDENT:
Konyaspor, Turkey
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REF FPSD-3285
I. Facts
1. On 1 August 2018, the parties concluded an employment contract valid as from the date of signature
until 31 May 2020.
2. On 17 June 2021, the parties concluded a protocol with the following conditions:
“2. On 01.08.2018 the Player and Club signed a Professional Player Contract that determines payments
to be made to the Player by the Club regarding the football season 2018/2019, 2019/2020 and
2020/2021.
(…)
3. The parties agreed that Konyaspor shall pay its debt to the player in 4 instalments as EUR 100.000
(One Hundred Thousand Euros) to the bank account of the Player until 18.06.2021, a check amounting
EUR 100.000 (One Hundred Thous and Euros) with the due date 15.07.2021, a check amounting EUR
100.000 (One Hundred Thousand Euros) with the due date 15.08.2021 and a check amounting EUR
95.514 (Ninty Five Thousand Five Hundred Fourteen Euros) with the due date 15.09.2021.)
(…)
5. In case of delay in payments of agreed fees hereinabove, the Club is obliged to pay the Player a
contractual fine amounting to net %10 of the unpaid amount for each month of delay accruing from
the very next day of the dates stipulated hereinabove. Konyaspor, accepts, declares and undertakes that
the penal clause stipulated herein is not excessive, and irrevocably waives its rights to request and claim
mitigation and amortization, and that this Protocol herein is concluded by taking into the account the
penal clause commitment by Konyaspor in this clause, and that this article herein is an indispensable
provision (sine qua non) of the Protocol.”
4. On 4 June 2021, the player sent a default notice with the following contents:
“We would like to draw your attention to the fact that the Club has not yet paid EUR 240.000 (Two
Hundred Forty Thousand Euros) net of the due and outstanding payable receivables of the Player
regarding the football season of 2020/ 2021 without prejudice to rights of request and claim with respect
to the surplus and the receivables of the Player which are not due as of the issuance date of this
notification as shown below:
On the Date Amount (€)
01.01.2021 40.000.-Euro
31.01.2021 40.000.-Euro
28.02.2021 40.000.-Euro
01.04.2021 40.000.-Euro
31.04.2021 40.000.-Euro
31.05.2021 40.000.-Euro
(…) we hereby would like to kindly notify you to make the outstanding payments of the Player in
connection with the football season of 2020/2021 amount of EUR 240.000 (Two Hundred Forty
Thousand Euros) net in total and its legal interest within 10 (ten) days.”
5. On 27 July 2021, the player sent a new default notice indicating the following:
“we hereby would like to kindly notify you to make the outstanding payments of the Player amount of
EUR 100.000 (One Hundred Thousand Euros) net in total as per the article 4 of the Protocol and 10%
contractual fine as per the article 5 of the Protocol signed between the Player and Konyaspor Kulubu
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REF FPSD-3285
Dernegi, plus its legal interest within 10 (ten) days in accordance with the article 12bis of FIFA Regulations
and the Status and Transfer of Players (RSTP)”
6. On 10 August 2021, the Clamant lodged a claim before FIFA and requested the payment of EUR
100,000, corresponding to the second instalment of the protocol, plus EUR 10,000 as penalty fee, as
well as “interest accruing from 16.07.2021 with the rate to be determined by FIFA”
7. In its reply to the claim, the Respondent explained that it duly and fully paid the first instalment of
100.000 Euro, on 18.06.2021.
8. As to the second instalment, the Respondent referred to the player’s default notice, and stated that in
view of its date, it was not in a delay for more than 30 days as of the date of the notification and
therefore, Art. 12bis RSTP is not applicable in the present circumstances.
9. As to the payable interest, the Respondent argued that the protocol foresees a hidden interest of
120% p.a., 10% for each month of delay.
10. In this respect, the Respondent referred to the jurisprudence of the DRC, according to which interests
and/or penalties exceeding the rate of 18% p.a. are considered disproportionate under Swiss Law and
are consequently declared invalid or reduced to 18% p.a.
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REF FPSD-3285
II. Considerations of the DRC Judge
1. First of all, the DRC Judge analysed whether he was competent to deal with the case at hand.
Taking into account the wording of art. 21 of the February 2021 edition of the Rules Governing
the Procedures of the Players’ Status Committee and 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.
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 January 2021
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 he considered pertinent
for the assessment of the matter at hand.
5. In this respect, the DRC Judge noted that, following an employment contract, the parties
concluded on 17 June 2021 a “protocol” according to which, inter alia, the player would be
entitled to EUR 100,000 on 15 July 2021.
6. Subsequently, the DRC Judge noted that the player lodged a claim before FIFA and requested
the aforementioned outstanding amount of EUR 100,000, which was due on 15 July 2021
7. On the other hand, the DRC Judge observed that the club fundamentally did not dispute the
aforementioned debt.
8. In view of the above, and given that the claim is uncontested and that the player duly
substantiated his request with sufficient evidence, the DRC Judge established that the club
shall pay to the Claimant, the amount of EUR 100,000, which was due on 15 July 2021.
9. 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 100,000, which was due on 15 July 2021.
10. 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 the
principal amount as from the due date.
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REF FPSD-3285
11. Moreover, the DRC Judge noted that, following the aforementioned contract, the parties
agreed upon the following:
12. “In case of delay in payments of agreed fees hereinabove, the Club is obliged to pay the Player
a contractual fine amounting to net %10 of the unpaid amount for each month of delay
accruing from the very next day of the dates stipulated hereinabove. Konyaspor, accepts,
declares and undertakes that the penal clause stipulated herein is not excessive, and irrevocably
waives its rights to request and claim mitigation and amortization, and that this Protocol herein
is concluded by taking into the account the penal clause commitment by Konyaspor in this
clause, and that this article herein is an indispensable provision (sine qua non) of the Protocol.”
13. In relation to the aforementioned clause, the DRC Judge observed that, indeed, the parties
freely and mutually agreed upon a penalty of 10% of the unpaid amount, i.e. 100,000*10%
= 10,000.
14. In this respect, the DRC Judge understood that the aforementioned penalty appears to be
reasonable and proportional in the light of the circumstances at hand.
15. In view of the above, and given that the claim is uncontested and that the player duly
substantiated his request with sufficient evidence, the DRC Judge established that the club
shall pay to the Claimant, the amount of EUR 10,000, as contractual penalty.
16. 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.
17. 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.
18. 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.
19. 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 FPSD-3285
III. DECISION OF THE DRC JUDGE
1.
The claim of the Claimant, Marco Jevtovic, is accepted.
2.
The Respondent, Konyaspor, has to pay to the Claimant, the following amount:
- EUR 100,000 as outstanding remuneration plus 5% interest p.a. as from 16 July 2021
until the date of effective payment;
- EUR 10,000 as agreed penalty.
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. 24bis of the Regulations on the Status and Transfer of Players (February 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. 24bis par. 7 and 8 and art. 24ter 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-3285
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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