Labour Disputes
Texto da decisão
REF. FPSD-8071
Decision of the
Dispute Resolution Chamber
passed on 1 June 2023
regarding an employment-related dispute concerning
the player Joseph Attamah
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Johan van Gaalen (South Africa), Member
Calum Beattie (Scotland), Member
CLAIMANT:
Joseph Attamah, Ghana
Represented by Livida Sport Limited
RESPONDENT:
Fatih Karagumruk AS, Türkiye
Represented by Sami Dinc
pg. 2
REF. FPSD-8071
I. Facts of the case
1.
On 28 January 2020, the Ghanaian player, Joseph Attamah (hereinafter: the player or the
Claimant) and the Turkish club, Fatih Karagumruk AS (hereinafter: the club or the
Respondent) concluded an employment contract (hereinafter: the conract), valid as from
the date of its signature until the end of the 2019/2020 season in Türkiye.
2.
Clause 6 of the contract reads as follows:
3.
On 1 January 2020 Turkish tax legislations concerning athletes were amended and the
following obligations introduced (hereinafter: the tax provision):
4.
-
Athletes earning over 600,000 TL gross (approx.: EUR 32,600) per year were required
to file an annual tax declaration. Beforehand no such filing requirement existed;
-
Withholding tax rates on salaries paid to players by Clubs in the Super League
increased from 15% to 20% (for contracts signed after 1 November 2019);
-
The 20% withholding tax declared by the Super League clubs could be deducted from
the players’ 40% income tax liability. Clubs were required to pay the 20% withholding
tax directly to the tax office. Importantly, if the clubs did not pay the relevant
withholding tax to the tax office, the tax office could seek to collect such sums from
the players.
On 5 July 2022, Mr Attamah received a tax bill from the Turkish tax authorities in respect of
his employment at Karagumruk and Kayseri Spor during the year 2020, the latter being the
club with which the player was contractually engaged upon expiration of the contract,
where it is stated that the following taxes shall be paid by the player:
-
TL 6,830,726 which includes (i) income tax of TL 2,742,162; (ii) a Tax Loss Penalty of
2,742,162; and (iii) interest up until 30 October 2022 of TL 1,346,402 in respect of
2020.
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REF. FPSD-8071
5.
On 14 July 2022, the player contacted the Respondent, requesting the latter to investigate
the situation concerning the tax request made by the Turkish tax authorities.
6.
By means of his letter of 1 September 2022, the player put the club in default of payment
in the amount of EUR 19,238 corresponding to the payment of the club’s alleged tax
obligations and legal fees, thereby granting the club a deadline of 10 days to cure its breach;
to no avail.
7.
On 3 October 2022, the Claimant put the Respondent in default of payment, again.
8.
On 5 October 2022, the club replied, stating that the tax provisions entered into force on 1
April 2022, i.e. once the contract had been concluded, and that – therefore – the inherent
tax obligations are not applicable to the contract.
9.
Thereto, the player replied on 6 October 2022, stating that the tax provisions entered into
force on 1 January 2020, i.e. before the contract was concluded and – therefore – the club
is liable to pay the amounts requested by the Turkish tax authorities
II. Proceedings before FIFA
a. Position of the Claimant
10. On 1 November 2022, the player lodged a claim against the club before FIFA, requesting
to be awarded outstanding remuneration in the total amounts of TL 345,634 and EUR
5,500, plus 5% interest p.a. on the amount of TL 345,634, broken down by the Claimant as
follows:
-
TL 138,753 as principal amount due as taxes derived from the player’s Personal
Income Tax as per the tax bill;
-
TL 138,753 corresponding to the penalty imposed by the Turkish tax authorities as
per the tax bill;
-
TL 68,123 as default interest already accrued;
-
EUR 2,000 as legal costs before the Turkish tax authorities;
-
EUR 3,500 as legal costs before the Football Tribunal.
11. In his claim, the player argued that “it was well known to the Club when Mr Attamah agreed to
join it, that he did so strictly on the basis that the salary negotiated with him was the amount he
would receive ‘net’ of all taxes, i.e. following the payment and/or deduction of any and all
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REF. FPSD-8071
applicable taxes. Appreciating that this was indeed the Player’s expectation and that he relied
on the Club’s representations in this respect, the Club failed to advise the Player that he would
be required to file an annual tax declaration, refused to pay the withholding tax directly to the
tax authorities, and has since declined to pay the sums the Player requires to cover his income
tax liability. Such conduct amounts to a clear breach of the implied term of trust and confidence
and demonstrates bad faith on the part of the Club”.
12. In addition, the player stressed that “the promise of receiving a net salary is understood by
foreign players to mean that all income related tax liabilities are being covered by the club. It
would therefore appear that clubs such as Karagumruk are hoping to avoid liability through
fraudulent or negligent misrepresentation”.
13. As to the allocation of the amount due by the Respondent, as opposed to the amount due
by the Turkish club Kayseri Spor, the Claimant provided a tax expert report (hereinafter:
the tax report; document on file), displaying the amounts due by each of said Turkish clubs
as follows:
-
Respondent’s tax liability: TL 345,635;
-
Kayseri Sport’s tax liability: TL 6,485,092.
14. The player wished to underscore that he “has as yet been unable to pay the tax bill, and
interest continues to accrue on the principal tax liability and penalty at a rate of 2.5% per month,
effective from 21 July 2022 (up from the previous rate of 1.6% per month)”.
b. Position of the Respondent
15. In its reply, the club held – inter alia – the following:
-
That, in accordance with art. 30/3 of the “Turkish Rescript of Income Tax”, the club was
only responsible to “pay the stoppage rates which were born in connection with the
amounts” included in the contract, together with the club’s obligation to pay the
player’s remuneration net, which the club alleged having done;
-
That taxes are the sole responsibility of individuals;
-
That the club made “tax base increase for the years 2016 – 2020 which also includes the
employment period of the Claimant with the Respondent”;
-
That the Respondent has no due and unpaid obligations towards the Claimant and,
therefore, the claim of the Claimant shall be rejected.
pg. 5
REF. FPSD-8071
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 1 November 2022 and
submitted for decision on 1 June 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.
17. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (March 2022 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player from
Ghana and a club from Türkiye.
18. 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 Players (March 2023 edition), and
considering that the present claim was lodged on 1 November 2022, the July 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
19. The Chamber 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 Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it 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
20. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
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REF. FPSD-8071
i. Main legal discussion and considerations
21.
The foregoing having been established, the Chamber moved to the substance of the
matter and noted that, whereas the Claimant argues that the Respondent shall be
ordered to pay the relevant amount of the sum claimed by the Turkish tax authorities via
its notice of 5 July 2022, which corresponds to TL 345,635 (approx. EUR 18,7645) as per
the tax report, plus interests; the Respondent argues that it duly proceeded with the
payment of the taxes in accordance with art. 30/3 of the Turkish Rescript of Income Tax
and that the obligation to pay Personal Income Tax corresponds to the employee.
22.
In this context, the Chamber underscored that clause 6 of the contract is crystal-clear
when stipulating that the player’s remuneration must be paid net and that the club would
assume every tax obligation in connection therewith before the Turkish tax authorities.
In this respect, the DRC further acknowledged that it remains undisputed that the Turkish
tax authorities, on 5 July 2022, urged the player to proceed with the payment of TL
6,830,726 concerning taxes (Personal Income Tax) and a penalty for non-payment.
23.
In addition, the Chamber observed that the Claimant has duly met his burden of proof cf.
art. 13 para. 5 of the Procedural Rules, when providing: the tax bill and the tax report
indicating the allocation of the amount due by the Respondent in connection with the
Claimant’s income tax during the fiscal year 2020 (which was not paid by the Respondent
despite its obligation to do so under clause 6 of the contract), as well as a penalty in an
amount equal to the principal outstanding amount.
24.
Moreover, the Chamber noted that the Respondent failed to provide a copy of the law to
which it referred, preventing the Football Tribunal from assessing whether the payments
with which it allegedly proceeded were sufficient under the application of said legal text.
ii. Consequences
25. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
26. In view of the abovementioned considerations and in application of the legal principle pacta
sunt servanda, the Chamber decided that the Respondent shall be ordered to pay to the
Claimant outstanding remuneration in the amount of TL 345,629 (principal outstanding
taxes, tax loss penalty and interest until 5 July 2022),.
27. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from 6 July 2022 until the date of effective
payment.
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REF. FPSD-8071
28. In this case, explained the DRC, to award interest on the penalty does not vulnerate the
principle of ne bis in idem, since the said amount is not hereunder awarded as penalty, but
as outstanding remuneration regardless of its consideration as penalty in front of the
Turkish tax authorities.
iii. Compliance with monetary decisions
29. Finally, taking into account the applicable Regulations, the Chamber 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.
30. In this regard, the DRC 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.
31. Therefore, bearing in mind the above, the DRC 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. 24 par. 2, 4, and 7 of the Regulations.
32. 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.
33. 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 par. 8 of
the Regulations.
d. Costs
34. The Chamber 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 Chamber decided that no procedural costs were to be
imposed on the parties.
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REF. FPSD-8071
35. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
36. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Joseph Attamah, is partially accepted.
2.
The Respondent, Fatih Karagumruk AS, must pay to the Claimant the following amount:
- TL 345,629 as outstanding remuneration plus 5% interest p.a. as from 6 July 2022 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 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.
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REF. FPSD-8071
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
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).
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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