DRC Overdue Payables
Texto da decisão
REF FPSD-5743
Decision of the
Dispute Resolution Chamber
passed on 22 June 2022
regarding an employment-related dispute concerning the player Cristóbal Andrés Jorquera Torres
BY:
Angela COLLINS (Australia), DRC Judge
CLAIMANT:
Cristóbal Andrés Jorquera Torres, Chile
RESPONDENT:
Fatih Karagumruk AS, Turkey
REF FPSD-5743
I Facts
1. On 13 January 2020, Cristóbal Andrés Jorquera Torres and Fatih Karagumruk AS concluded an
employment contract valid “during the second half of 2019/2020 football season or any later date on
which an official match is player in the respective football season.”
2. According to art. 6.1 of the contract, the player was entitled to the following:
For the remaining 2019/2020
Football Season: 200.000,00-Euro net (Two Hundred Thousand Euros)
The aforementioned amount is to be paid to the Player by the Club as the monthly salary in five
instalments as shown below:
- 40.000,00-Euro net: 31.01.2020
- 40.000,00-Euro net: 29.02.2020
- 40.000,00-Euro net: 31.03.2020
- 40.000,00-Euro net: 30.04.2020
- 40.000,00-Euro net: 10.06.2020
(…)
6.2- Living cost of the Player:
2019/2020 football season: The Club shall pay to the Player in the amount of 5.000,00-Euro net in total as
living cost in 5 (five) equal installments (5 x 1.000,00-Euro net) between the period January 2020 –
May 2020. The living cost installments are to be paid the last day of the relevant months.
(…)
3. Art. 6 of the contract further stipulated the following:
“The Club is obliged to pay the amounts (…) to the Player in return of his services subject to this employment
contract, all payments indicated in the employment contract are to be considered as “net” payments. All
payments and remunerations are net of any kind of taxes and deductions of any nature. The obligation of
taxes shall be borne by the Club. For the avoidance of the doubt, the Club shall only be responsible of the
income taxes accrued in accordance with the Turkish Tax legislation and the Club shall not be responsible
for any other obligations due to the - including but not limited - additional tax duties, social contributions
and/or levies related to the other countries’ legislations.”
4. In addition, as per art. 6 par. 3 of the contract, the player was entitled to the following bonus:
“In case the Club promotes to the TFF Super League at the end of the football season of 2019/2020, the Club
shall pay to the Player 30.000,00-Euro net as bonus which will be calculated based on the 17 TFF 1st league
matches (30.000,00- Euro / 17 official league matches).
In case the Player starts the match in first 11, the Player shall be entitled 1.764,70-Euro for this match;
In case the Player’s attendance in the squad and field in the course of the game, the Player shall be entitled
1.323,52- Euro for this match;
In case the Player’s attendance in the squad but without playing in the game, the Player shall be entitled
882,35-Euro for this match.
In case the Player doesn’t serve in the squad, the Player shall not be entitled for the bonus for this match.
This bonus shall be paid in 60 days following the end of the football season of 2019/2020, in case it occurs.”
5. According to the player, on 18 February 2022, he had a conversationon “WhatsApp Messenger”with
the vice-president of the club, who acknowledged the following debt
REF FPSD-5743
6. On 8 March 2022, the player, via his legal representative, sent a default notice, and requested the
payment of EUR 77,882.30 within 10 days.
7. On 11 April 2022, Cristóbal Andrés Jorquera Torres lodged a claim before FIFA for outstanding
remuneration and requested the payment of the outstanding amounts of EUR 77,882.30, plus 5%
interest p.a., as outstanding remuneration for the season 2019/2020;
8. In its reply, the Respondent explained that it is trying to negotiate a settlement with the Claimant.
9. However, the Respondent requested “to dismiss the claim of the Claimant” and “to make a decision that
the judicial costs and the attorneyship fees that the Claimant is faced with shall paid by the Claimant.”
10. In his replica, the Claimant clarified the he was paid as follows:
AMOUNT
ENTITLED AMOUNTS
EUR 200,000 (salaries)
EUR 5,000 (living costs)
EUR 18,882.30 (bonus)
TOTAL ENTITLED: EUR 223,882.30 net
RECEIVED AMOUNTS
14.02.2020
EUR 43,000
09.03.2020
EUR 3,000
06.04.2020
EUR 25,000
11.06.2020
EUR 35,000
30.10.2020
EUR 20,000
15.03.2020
EUR 20,000
TOTAL RECIEVED
EUR 146,000
TOTAL (entitled minus received)
EUR 77,882.30
REF FPSD-5743
II Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as Single
Judge) analysed whether it was competent to deal with the case at hand. In this respect, she took note
that the present matter was presented to FIFA on 12 April 2022 and submitted for decision on 22 June
2022. Taking into account the wording of art. 34 of the October 2021 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.
2. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (August 2021 edition), it is competent to deal with
the matter at stake, which concerns an employment-related dispute with an international dimension
between a Chilean player and a Turkish club.
3. Subsequently, the Single Judge analysed which regulations should be applicable as to the substance
of the matter. In this respect, she confirmed that, in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (August 2021 edition), and considering that the
present claim was lodged on 12 April 2022, the August 2021 edition of said regulations (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
4. 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 she 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
5. Her 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 abovementioned facts as well as the arguments and the documentation on file. However, the Single Judge
emphasised that in the following considerations she will refer only to the facts, arguments and
documentary evidence, which she considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
6. The Single Judge first noted that the parties concluded a contract valid as from 13 January 2020 until
the end of the season 2019/2020 according to which the player, inter alia, would receive EUR 200,000
net in 5 instalments of EUR 40,000 each, as well as EUR 5,000 during the same season as living costs,
payable in 5 instalments of EUR 1,000 each between January until May 2020, as well as a bonus in the
maximum amount of EUR 30,000 for match participation (cf. point I 4 above).
REF FPSD-5743
7. Subsequently, the Single Judge noted that the Claimant lodged a claim before FIFA against the
Respondent and requested the payment of the outstanding amount of EUR 77,882.30. The Chamber
noted that, according to the player, we would have received during the duration of the contract, the
amount of EUR 223,882.30 net (i.e. EUR 200,000 as salaries, EUR 5,000 as living costs, plus a bonus in
the amount of EUR 18,882.30 for playing in the Turkish Super League), while he argued that he
received EUR 146,000 only.
8. On the other hand, the Single Judge took note of the position of the Respondent, and observed that
it fundamentally acknowledged the claimed debt towards the player.
9. In view of the above, the Single Judge established that the total amount due to the player, i.e. EUR
77,882.30, corresponds to the following amounts:
EUR 19,000, for the rest of the amount due on 30 April 2020;
EUR 40,000, for the total payment due on 10 June 2020,
EUR 18,882.30 as bonus (pro rata)
10.Consequently, in strict application of the principle of pacta sunt servanda, the Single Judge established
that the Respondent has to pay to the Claimant, the total outstanding amount of 77,882.30, as
explained above.
11.Moreover, taking into account the request of the Claimant as well as the longstanding jurisprudence
in this regard, the Single Judge decided to award 5% interest p.a. over said amount as from the due
dates.
ii. Consequences
12.In continuation, 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.
13.To this end, the Single Judge confirmed that the player put the club in default of payment of the
amounts sought, which had fallen due more than 30 days before, and granted the club a 10-day
deadline to cure such breach of contract.
14.Accordingly, the Single Judge confirmed that the club had delayed a due payment without a prima
facia contractual basis. It followed that the criteria enshrined in art. 12bis of the Regulations was met
in the case at hand.
15.The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations she has
competence to impose sanctions on the club. Considering the reprimand already imposed against the
club in the matter FPSD-5699,, the Single Judge decided to impose a fine in the amount of USD 5,000
on the club in accordance with art. 12bis par. 4 lit. c) of the Regulations.
16.In this connection, the Single Judge highlighted that a repeated offence will be considered as an
aggravating circumstance and lead to a more severe penalty in accordance with art. 12bis par. 6 of
the Regulations.
REF FPSD-5743
iii. Compliance with monetary decisions
17.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.
18.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.
19.Therefore, bearing in mind the above, the Single Judge decided that the club must pay the full amount
due (including all applicable interest) to the player within 45 days of notification of the decision, failing
which, at the request of the creditor, 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 club in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
20.The club shall make full payment (including all applicable interest) to the bank account provided by
the player in the Bank Account Registration Form.
21.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
22.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.
23.Furthermore, 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.
24.Lastly, the Single Judge concluded her deliberations by rejecting any other requests for relief made by
any of the parties.
REF FPSD-5743
III Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Cristóbal Andrés Jorquera Torres, is accepted.
2.
The Respondent, Fatih Karagumruk AS, has to pay to the Claimant, the outstanding
amount of EUR 77,882.30 plus interest calculated as follows:
5% interest p.a. over the amount of EUR 19,000 as from 30 April 2020 until the date of effective payment;
5% interest p.a. over the amount of EUR 40,000 as from 11 June 2020 until the date of effective payment;
5% interest p.a. over the amount of EUR 18,882.30 as from 1 September 2020 until the date of effective payment;
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, 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.
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.
7.
A fine in the amount of USD 5,000 is imposed on the Respondent (art. 12 bis of the
Regulations)
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-5743
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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