Labour Disputes
Texto da decisão
REF FPSD-3922
Decision of the
Dispute Resolution Chamber
passed on 25 November 2021
regarding an employment-related dispute concerning the player Marko Jevtovic
BY:
Frans DE WEGER (The Netherlands), Chairperson
Mario FLORES CHEMOR (Mexico)
Stefano SARTORI (Italy), member
CLAIMANT:
Marko Jevtovic, Serbia
RESPONDENT:
Konyaspor Kulubu Dernegi, Turkey
REF FPSD-3922
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.) (underline added)
(…)
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.”
3. On 17 August 2021, the player sent a default notice with the following contents and granting 10 days to
remedy the default:
“We would like to draw your attention to the fact that the Club has not yet paid EUR 100.000 (…) net
of the due and outstanding payable receivables of the Player 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(€)
15.08.2021 100.000.-Euro
4. On 17 September 2021, the player sent a new default notice indicating the following and granting 10
days to remedy the default:
“would like to draw your attention to the fact that the Club has not yet paid EUR 95.514 (…) net of
the due and outstanding payable receivables of the Player 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(€)
15.09.2021 95.514.-Euro”
5. On 31 August 2021, the player lodged a claim before FIFA and requested the payment of EUR
110,000 corresponding to the third instalment of the protocol, plus EUR 10,000 as penalty fee, as
well as “interest accruing from 16.08.2021 with the rate to be determined by FIFA”.
REF FPSD-3922
6. On 29 September 2021, the player lodged another claim before FIFA and requested the payment of
EUR 95,514, corresponding to the fourth instalment of the protocol, plus EUR 9,551 as penalty fee,
as well as “interest accruing from 16.09.2021 with the rate to be determined by FIFA”.
(note: both claims have been consolidated into the same procedure)
7. In its reply to the claim, the Respondent argued that the default notices of 17 August 2021 and 17
September 2021 were sent only 2 days after the due dates, and therefore art. 12 bis is inapplicable
since the amounts were not outstanding for 30 days.
8. As to the penalty, the Respondent considered that it is beyond any reasonable doubt that the provision
given above relates to a hidden interest of 120% p.a., as it foresees the payment of a penalty in the
rate of 10% for each month of delay.
9. Consequently, the Respondent considered that the penalty must be reduced to the maximum rate of
18% p.
REF FPSD-3922
II.
Considerations of the DRC
1. First of all, the Dispute Resolution Chamber (DRC or the Chamber) 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 August 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 Chamber 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 August 2021 and EUR 95,514 on 15 September.
6. Subsequently, the Chamber noted that the player lodged two claims before FIFA and respectively
requested the aforementioned outstanding amounts of EUR 100,000, due on 15 August 2021 and
EUR 95,514, due on 15 September.
7. On the other hand, the Chamber observed that the club fundamentally did not dispute the
aforementioned debt and only considered that the default notices sent by the club would render
art. 12 bis of the Regulations inapplicable.
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 Chamber established that the club shall pay to the Claimant,
the amounts of EUR 100,000, due on 15 August 2021 and EUR 95,514, due on 15 September 2021.
9. Consequently, in strict application of the principle of pacta sunt servanda, the DRC established that
the Respondent has to pay to the Claimant, the total outstanding amountd of EUR 100,000 and
EUR 95,514, as explained above.
REF FPSD-3922
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 dates.
11. Moreover, the Chamber 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 Chamber observed that, indeed, the parties freely and
mutually agreed upon a penalty of 10% of the unpaid amounts, i.e. 100,000*10% = 10,000 and
EUR 95,514*10% = EUR 9,551.
14. In this respect, the Chamber 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 Chamber established that the club shall pay to the Claimant,
the amount of EUR 10,000 and EUR 9,551, as contractual penalty.
16. Furthermore, taking into account the previous considerations, the DRC referred to par. 1 and 2 of
art. 24 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 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 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. 24 of the Regulations.
19. Finally, 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 of the Regulations.
REF FPSD-3922
III. Decision of the DRC
1.
The claim of the Claimant, Marko Jevtovic, is accepted.
2.
The Respondent, Konyaspor Kulubu Dernegi, has to pay to the Claimant, the following
amounts:
-
EUR 100,000 corresponding to the third instalment of the protocol, plus 5% interest p.a. as from
16 August 2021 until the date of effective payment;
-
EUR 10,000 as penalty fee,
-
EUR 95,514 corresponding to the fourth instalment of the protocol, plus 5% interest p.a. as from 16
September 2021 until the date of effective payment;
-
EUR 9,551 as penalty fee,
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
4.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 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.
2.
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.
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.
5.
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.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-3922
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).
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