Labour Disputes
Texto da decisão
REF FPSD-6554
Decision of the
Dispute Resolution Chamber
passed on 22 August 2022
regarding an employment-related dispute concerning the player Andrii
Kulakov
BY:
Michele Colucci (Italy)
CLAIMANT:
Andrii Kulakov, Ukraine
RESPONDENT:
Tuzlaspor AŞ, Türkiye
Represented by Mr Ercan Sevdimbaş
Page 2
REF FPSD-6554
I.
Facts of the case
1.
On 28 March 2022, the Ukrainian player Andrii Kulakov (hereinafter: the Claimant) and the
Turkish club Tuzlaspor AŞ (hereinafter: the Respondent) signed an employment contract
(hereinafter: the Contract) valid as from the date of signature until 31 May 2022.
2.
In accordance with art. 3 of the employment contract, the Respondent undertook to pay
to the Claimant two salary instalments of USD 10,000, payable on 30 April 2022 and
31 May 2022 respectively.
3.
Furthermore, in accordance with the same provision, the Respondent undertook to pay
the Claimant two round trip flight tickets, for two people.
4.
Moreover, in accordance with the same provision, it was stipulated as follows:
“In the event that league competitions are suspended due to force majeure such as COVID-19
and similar epidemic diseases, earthquakes, natural disasters, in accordance with the
recommendations of FIFA, the payments due within the period of force majeure cannot be
requested by the player and debts related to the aforementioned terms will be paid one
month after the disappearance of the force majeure and resumption of competitions.”
5.
On 28 March 2022, upon signing the Contract, the Claimant received a payment of
USD 10,000 from the Respondent. In this respect, the Claimant confirmed receipt thereof
by signing a receipt slip which read as follows:
“I received USD 10,000 as guarantee payment / signature fee by hand on 28.03.2022
according to the Professional Football Player Contract undersigned with Tuzlaspor AS. I also
accept, declare and undertake that this paid amount can be deducted from my arised / arising
receivables according to the Contract.”
6.
There appeared to be no default notice on file.
7.
On 31 May 2022, the Contract expired naturally.
Page 3
REF FPSD-6554
II. Proceedings before FIFA
8.
On 29 June 2022, 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
9.
According to the Claimant, the Respondent failed to comply with several payments due
under the Contract, in the total amount of USD 20,170, detailed as follows:
-
USD 10,000 - salary for April 2022, due 30 April 2022;
USD 10,000 - salary for May 2022, due 31 May 2022;
USD 170 - cost of flight tickets for the Claimant and his partner to return home
after the expiry of the Contract.
10. Furthermore, the Claimant requested interest at the “highest rate”, as from the respective
due dates of the allegedly unpaid instalments until the date of effective payment.
b. Position of the Respondent
11. According to the Respondent, USD 10,000 had been paid upon signature of the Contract,
and said payment was considered an advance payment of the salary due on 30 April 2022.
Accordingly, the Respondent requested the amount of USD 10,000 to be deducted from
any outstanding remuneration awarded to the Claimant.
12. Furthermore, the Respondent outlined that the Claimant had not informed the former of
the purchase of the flight tickets at the time they were purchased and that, as a result,
the claim for them should be rejected.
13. Lastly, the Respondent briefly justified the non-payment of the remaining amount of
USD 10,000 with the depreciation of the Turkish Lira and the financial difficulties
experienced by the former as a result thereof.
c. Claimant’s comments
14. In reply to the allegation that a payment of USD 10,000 had been made to the Claimant
on the date of the signature of the Contract, the Claimant acknowledged the authenticity
of the receipt submitted by the Respondent, as well as the payment which had allegedly
occurred, but challenged the legal effect thereof with regards to the entitlement to the
two instalments which were contractually stipulated for the months of April 2022 and
May 2022.
Page 4
REF FPSD-6554
15. In this respect, the Claimant argued that there was no provision in the Contract regarding
a signature fee / signing bonus, and that, therefore, this cannot affect the contractual
provisions that are contained in the Contract.
16. Furthermore, the Claimant asserted that, based on the fact that the receipt was not
registered with Türkiye Futbol Federasyonu (TFF) as part of the Contract, the Contract
represents the entirety of the employment relationship between the Claimant and the
Respondent, and that it cannot be affected by any subsequent instrument, including the
payment receipt.
17. Lastly, the Claimant pointed out that the contested amount of USD 10,000 was specified
as a “guarantee payment/signature fee”, and that, as such, was different in nature to the
salaries to which the Claimant is entitled under the Contract, thereby not affecting the
entitlement to the claimed amounts.
Page 5
REF FPSD-6554
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether he was competent to deal with the case at hand. In
this respect, he took note that the present matter was presented to FIFA on 29 June 2022
and submitted for decision on 22 August 2022. Taking into account the wording of art. 34
of the June 2022 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.
19. Subsequently, 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 (July 2022 edition), he is competent to
deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Ukrainian player and a Turkish club.
20. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Player (July 2022 edition),
and considering that the present claim was lodged on 29 June 2022, the June 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
21. 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, he stressed the
wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
22. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, he 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 he will refer only to the
facts, arguments and documentary evidence, which he considered pertinent for the
assessment of the matter at hand.
Page 6
REF FPSD-6554
i. Main legal discussion and considerations
23. 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 under the Contract, namely the two instalments
of USD 10,000 each, stipulated thereunder, as well as the flight tickets in the amount of
USD 170.
24. In this context, the Single Judge acknowledged that his 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.
25. 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.
26. In this respect, the Single Judge took note of the payment receipt submitted by the
Respondent, and, having carefully analysed it, concluded that the payment documented
thereby, indeed, could be construed as an advance payment of the salary for April 2022
which was sought by the Claimant. The Single Judge pointed out that, due to the clear
wording of the payment receipt, and particularly due to the fact that there was no
provision in the Contract stipulating otherwise, the amount of USD 10,000 was an advance
payment of the first salary instalment of the Contract.
27. Furthermore, the Single Judge noted that the Respondent acknowledged the debt of
USD 10,000, outlining that the reason for said non-payment was the depreciation of the
Turkish Lira and the financial difficulties experienced by the Respondent as a result
thereof.
28. In this context, the Single Judge wished to point out that the Respondent failed to submit
any evidence corroborating either the assertion that the Turkish Lira had indeed
depreciated as claimed, or that the domestic league competition had been suspended as
a result of force majeure, as required by art. 3 of the Contract, thereby failing to meet the
burden of proving that the payments under the Contract could be challenged.
29. Consequently, the Single Judge concluded that, as no situation of force majeure could be
established in the present matter, the Respondent has to comply with the contractually
agreed payments.
30. Lastly, concerning the claim of the Claimant for flight tickets in the amount of USD 170,
the Single Judge relied on art. 3 of the Contract and his longstanding jurisprudence in
Page 7
REF FPSD-6554
establishing that flight tickets are awarded to players when returning home after the
expiration or termination of a contract, and thereby dismissed the argumentation by the
Respondent that he failure to inform the latter of the purchase affected the ability to seek
reimbursement for expenses related thereto in the present claim.
31. The Single Judge also noted that the Claimant submitted payment receipts for said flight
tickets in the amount of USD 166.02, and not USD 170, as claimed by the latter. In line
with the general legal principle of pacta sunt servanda, the Single Judge, therefore,
concluded that the Respondent shall be held liable to pay the costs of the flight tickets
incurred by the Claimant.
ii. Consequences
32. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
33. In this respect, the Single Judge observed that the financial obligations deemed as
outstanding in the present case correspond to USD 10,166.02, or one salary instalment
for the month of May 2022 and the cost of the return flight tickets for the Claimant and
his partner.
34. Therefore, in accordance with the general legal principle of pacta sunt servanda, the Single
Judge decided that the Respondent shall be held liable to pay the Claimant the amounts
claimed as outstanding under the Contract, in total USD 10,166.02, as detailed above.
35. In addition, taking into consideration the Claimant’s request and the constant practice of
the Single Judge in this regard, the latter decided to award the Claimant interest at the
rate of 5% p.a. as from 1 June 2022 until the date of effective payment.
iii. Compliance with monetary decisions
36. Finally, taking into account the applicable Regulations, the Single Judge referred to
art. 24bis par. 1 and 2 of the Regulations, which stipulate that, with his decision, he 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.
37. 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.
Page 8
REF FPSD-6554
38. 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. 24bis par. 2, 4, and 7 of the
Regulations.
39. 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.
40. 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. 24bis par. 8 of the Regulations.
d. Costs
41. 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.
42. 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.
43. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for
relief made by any of the parties.
Page 9
REF FPSD-6554
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Andrii Kulakov, is partially accepted.
2.
The Respondent, Tuzlaspor AŞ, has to pay to the Claimant the following amount:
- USD 10,166.02 as outstanding remuneration plus 5% interest p.a. as from 1 June 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. 24bis 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 the ban
shall be of 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
Page 10
REF FPSD-6554
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).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 11