DRC Overdue Payables
Texto da decisão
REF. FPSD-12662
Decision of the
Dispute Resolution Chamber
passed on 15 December 2023
regarding an employment-related dispute concerning
the player Fedor Kudriashov
BY:
Lívia SILVA KÄGI (Brazil/Switzerland), Deputy Chairperson
CLAIMANT:
Fedor Kudriashov, Russia
Represented by İsmet Bumin Kapulluoğlu
RESPONDENT:
Bitexen Antalyaspor, Türkiye
pg. 2
REF. FPSD-12662
I. Facts of the case
1.
On 26 January 2023, the Russian player Fedor Kudriashov (hereinafter the Claimant) and
the Turkish club Bitexen Antalyaspor (hereinafter the Respondent) concluded an
employment agreement (hereinafter the Employment Agreement), valid as from 30 July 2021
until 31 May 2022.
2.
In accordance with the Employment Agreement, the Claimant and the Respondent (jointly
referred to as the Parties) agreed to a remuneration of EUR 660,000, payable as follows:
“B- In addition to the remuneration as set forth above, the Player shall be paid 1.315,00Euro (maximum amount of 50.000-Euro) as per game bonus for the official league
matches, he participates in. Match bonuses shall be paid in accordance with the
conditions below:
i. For each game in which the Player is fielded within the starting 11 % I 00 of the per I
game bonus will be paid.
ii. If the Player enters the field as a substitute at any stage of a match and plays more
than 45 minutes in the relevant match,% I 00 of the per game bonus will be paid.
iii. If the Player enters the field as a substitute at any stage of a match and plays less than
45 minutes in the relevant match %75 of the per game bonus will be paid.
iv. If the Player entered on the match entry list (21 players list) but not fielded, %50 of the
per game bonus will be paid.
v. If the Player is not in match entry list (21 Players list), no bonus will be paid.
vi. Per game bonuses shall only and exclusively be paid for official league (Turkish Super
League) matches.
vii. The Player shall not be entitled to the per game bonusses if he is sent off during the
relevant match, regardless of the reason for being sent off and the minute he is sent off.
viii. Per game bonusses stipulated above will be paid to the Player within 60 days from
registration of the relevant season by TFF. The Player is acknowledged on the payment
date and accepts this payment schedule with his free will.
C- Other Payments:
i. lf the Player is fielded within the starting 11 or entered the field as a substitute at any
stage of 15 (fifteen) 2021/2022 season Spor Toto Super League matches, 50.000-Euro
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REF. FPSD-12662
bonus shall be paid to the Player within 60 days from registration of the relevant season
by TFF.
ii. If the Player is fielded within the starting 11 or entered the field as a substitute at any
stage of 30 (thirty) 2021/2022 season Spor Toto Super League matches, additional
50.000-Euro bonus shall be paid to the Player within 60 days from registration of the
relevant season by TFF.”
3.
Furthermore, the Partied agreed upon the following extension of the Employment
Agreement:
“The Club and the Player explicitly agrees that; if the Player is fielded within the starting
11 in 20 (twenty) League matches in 2021/2022 Season, this contract will be extended
one (I) more season (i.e., to 2022/2023 Football Season) with the conditions parties set
out together below:
A - The Player shall be paid 660.000-Euro (six hundred thousand Euro) for the 2022/2023
Season in accordance with the following schedule:
“B- In addition to the remuneration as set forth above, the Player shall be paid 1.388,00Euro (maximum amount of 50.000-Euro) as per game bonus for the official league
matches, he participates in. Match bonuses shall be paid in accordance with the
conditions below:
i. For each game in which the Player is fielded within the starting 11 % I 00 of the per I
game bonus will be paid.
ii. If the Player enters the field as a substitute at any stage of a match and plays more
than 45 minutes in the relevant match,% I 00 of the per game bonus will be paid.
iii. If the Player enters the field as a substitute at any stage of a match and plays less than
45 minutes in the relevant match %75 of the per game bonus will be paid.
iv. If the Player entered on the match entry list (21 players list) but not fielded, %50 of the
per game bonus will be paid.
v. If the Player is not in match entry list (21 Players list), no bonus will be paid.
vi. Per game bonuses shall only and exclusively be paid for official league (Turkish Super
League) matches.
vii. The Player shall not be entitled to the per game bonusses if he is sent off during the
relevant match, regardless of the reason for being sent off and the minute he is sent off.
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REF. FPSD-12662
viii. Per game bonusses stipulated above will be paid to the Player within 60 days from
registration of the relevant season by TFF. The Player is acknowledged on the payment
date and accepts this payment schedule with his free will.
C- Other Payments:
i. lf the Player is fielded within the starting 11 or entered the field as a substitute at any
stage of 15 (fifteen) 2022/2023 season Spor Toto Super League matches, 50.000-Euro
bonus shall be paid to the Player within 60 days from registration of the relevant season
by TFF.
ii. If the Player is fielded within the starting 11 or entered the field as a substitute at any
stage of 30 (thirty) 2022/2023 season Spor Toto Super League matches, additional
50.000-Euro bonus shall be paid to the Player within 60 days from registration of the
relevant season by TFF.”
4.
It remained undisputed that the Employment Agreement had been extended until the end
of season 2022/2023.
5.
On 30 October 2023, the Claimant sent a default letter to the Respondent, requesting the
amount of EUR 80,472.44 within the next 10 days. In particular, the Claimant argued:
“According to the referred contract, Antalyaspor A.Ş. undertook to pay to Mr. Kudriashov in
the 2022/2023 season; 660.000.-Euro as guaranteed remuneration, 20.000.-Euro as
accommodation and travel expenses and per match bonusses, each in the amount of 1.388.Euro.
As Mr. Kudriashov started in 10 official league matches with the starting eleven, was fielded
as a substitute (and remained on the field for less than 45 minutes) in three matches and was
included in the match list but was not fielded in five matches, he became entitled to 20.473.Euro as per match bonusses. The per match bonusses became due on 14.08.2023, which is
60 days after the registration of the season by the Turkish Football Federation.
The per match bonusses, in addition to the guaranteed remuneration and the allowances of
Mr. Kudriashov, result in a total entitlement of 700.473.-Euro.
Despite Mr. Kudriashov becoming entitled to a total of 700.473.-Euro, Antalyaspor A.Ş. only
paid 620.000,56.-Euro to Mr. Kudriashov. Consequently, the total principal amount of
80.472,44.-Euro remains overdue as of today.” (emphasis added)
6.
On 11 December 2023, the Respondent replied to the Claimant that it is in the middle of
restructuring and that it will revert to the Claimant soon.
pg. 5
REF. FPSD-12662
II. Proceedings before FIFA
7.
On 14 November 2024, 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
8.
The requests for relief of the Claimant, were the following:
“a. to admit the present claim,
b. to order the Respondent to pay to the Claimant the total amount of 80.472,44.-Euro net as
outstanding remuneration alongside with its interests in the rate of 5% p.a. to accrue on both
instalments, starting from the respective due date and until the date of effective payment,
c. to impose the corresponding sporting sanctions on the Respondent in accordance with Art.
12bis RSTP.”
9.
The Claimant argued that said amount of EUR 80,472.44 remained outstanding as a result
of unpaid guaranteed remuneration of May 2023 (EUR 59,999.44) and “per game bonuses”
(EUR 20,473) and based his claim on the legal principle pacta sunt servanda.
10. The Claimant provided evidence for his entitlement to the relevant bonuses.
b. Position of the Respondent
11. The Respondent submitted the following reply:
“(…) the claims made by the player should be rejected, as they lack substantial grounding in both
fact and law.”
12. Without further substantiating its claim, nor calculating the amounts that have been
effectively paid to the Claimant, the Respondent claimed that “here have been four changes
in the club's presidency. These changes have inevitably resulted in administrative modifications
and have led to certain deficiencies or erroneous calculations. Consequently, the document
reviews to be conducted by FIFA are of vital importance from the perspective of Antalyaspor.”
13. It must be noted that the Respondent submitted various payments slips (in TRY and EUR)
outside the deadline to file the reply, in particular, the evidence was submitted two days
after the relevant deadline.
pg. 6
REF. FPSD-12662
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether she was competent to deal with the case at hand. In
this respect, she took note that the present matter was presented to FIFA on
14 November 2023 and submitted for decision on 15 December 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.
15. Subsequently, the members of the Single Judge 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 May 2023 edition), the Single Judge
of the Dispute Resolution Chamber is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between an
Russian player and a Turkish club.
16. 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 (May 2023 edition), and
considering that the present claim was lodged on 14 November 2023, the May edition of
said regulations (hereinafter the Regulations) is applicable to the matter at hand as to the
substance.
b. Admissibility of the late submission of the evidence
17. At this point, the Single Judge recalled that the Respondent submitted its evidence to FIFA
general secretariat two days after the relevant deadline to reply expired. In this respect,
she pointed to art. 21 par. 1 of the Procedural Rules and concluded the said evidence
cannot be considered in the matter at hand.
c. Burden of proof
18. 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).
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REF. FPSD-12662
d. Merits of the dispute
19. 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 above-mentioned 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
20. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the Parties strongly dispute the payment of certain
financial obligations by the Respondent as per the contract, namely EUR 80,472.44.
21. In this context, the Single Judge acknowledged that her task was to determine, based on
the evidence presented by the Parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the latter had a valid justification for not
having complied with its financial obligations.
22. The Single Judge first noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded between
the Parties.
23. Nonetheless, the Single Judge recalled that the evidence provided by the Respondent was
not admissible due to the late reply. The Single Judge also did not fail to notice that the
Respondent itself failed to make any calculation and requested FIFA to do so itself. In this
respect, the Single Judge wished to highlight that, in any event, it is up to the Respondent
to substantiate its answer and not up to FIFA.
24. Therefore, as no justification was presented by the Respondent for not having complied
with the terms of the contract and bearing in mind the basic legal principle of pacta sunt
servanda, which in essence means that agreements must be respected by the parties
in good faith, the Respondent is held liable to pay the Claimant the outstanding amounts
deriving from the contract concluded between the Parties, namely EUR 80,472.44.
ii. Consequences
25. The Single Judge observed that the financial obligations deemed as outstanding in the
present case correspond to guaranteed remuneration of May 2023 (EUR 59,999.44) and
“per game bonuses” (EUR 20,473) under the contract.
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REF. FPSD-12662
26. 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 amounts
claimed as outstanding under the contract, in total EUR 80,472.44.
27. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Single Judge in this regard, the latter decided to award the Claimant interest as
follows:
−
EUR 59,999.44 as outstanding remuneration plus 5% interest per annum as from
1 June 2023 until the date of effective payment;
−
EUR 20,473 as outstanding remuneration plus 5% interest per annum as from
14 August 2023 until the date of effective payment.
iii. Art. 12bis of the Regulations
28. 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.
29. 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.
30. Accordingly, the Single Judge confirmed that the club had delayed a due payment without
a prima facie contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
31. 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. On account of the above and bearing
in mind that this is the first offense by the club within the last two years, the Single Judge
decided to impose a warning on the club in accordance with art. 12bis par. 4 lit. a) of the
Regulations.
32. 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.
iv. Compliance with monetary decisions
33. 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
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REF. FPSD-12662
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
34. 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.
35. 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
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.
36. 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.
37. 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.
e. Costs
38. 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.
39. 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.
40. Lastly, the Single Judge concluded her deliberations by rejecting any other requests for
relief made by any of the Parties.
pg. 10
REF. FPSD-12662
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Fedor Kudriashov, is accepted.
2.
The Respondent, Bitexen Antalyaspor, must pay to the Claimant the following amount(s):
−
EUR 59,999.44 as outstanding remuneration plus 5% interest per annum as from
1 June 2023 until the date of effective payment;
−
EUR 20,473 as outstanding amount plus 5% interest per annum as from
14 August 2023 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A warning is imposed on the Respondent.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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.
7.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-12662
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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pg. 12