Labour Disputes
Texto da decisão
REF FPSD-2781
Decision of the
DRC Judge
passed on 11 August 2021
regarding an employment-related dispute concerning the player Ante Kulusic
BY:
CLAIMANT:
Ante Kulusic, Croatia
Represented by Rıza Köklü
RESPONDENT:
MKE Ankaragucu SK, Turkey
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REF FPSD-2781
I.
FACTS OF THE CASE
1.
On 1 June 2020, the Croatian player, Ante Kulusic (hereinafter: Claimant), and the Turkish
club, MKE Ankaragucu SK (hereinafter: Respondent) signed an employment contract
(hereinafter: contract) valid as from 1 June 2020 until 31 May 2021.
2.
According to the contract, the Respondent undertook to pay the player a total amount of
EUR 400,000, payable as follows:
- EUR 100,000 on 31 August 2020;
- EUR 300,000 in 10 instalments of EUR 30,000 payable between 31 August 2020 and
31 May 2020, at the end of each month.
3.
On 3 December 2020, the player put the club in default and requested payment of EUR
225,000 within 15 days.
4.
On 11 June 2021, the player lodged a claim against the Respondent in front of FIFA and
requested payment of EUR 180,000, corresponding to the salaries as from December 2020
until May 2021 (6x EUR 30,000) plus 5% interest p.a. as of the respective due dates.
5.
In his claim, the Claimant held that the Respondent paid its debt of EUR 225,000 after his
default notice in December 2020, but subsequently failed to pay any further amount.
6.
On account of the above, the player claims his remuneration between December 2020 and
May 2021.
7.
In its reply, the Respondent rejected the player’s claim and argued having fulfilled its
financial obligations.
II.
PROCEEDINGS BEFORE FIFA
8.
On 11 June 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
The claim of the Claimant
9.
According to the Claimant, the total amount of EUR 180,000, corresponding to his salaries
as from December 2020 until May 2021, remained outstanding up to date.
10.
In this context, the Claimant requested payment of EUR 180,000 plus 5% interest p.a. as
from the respective due dates.
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b.
Position of the Respondent
11.
In its reply, the Respondent rejected the player’s claim.
12.
The Respondent argued having fulfilled its financial obligations and submitted various
untranslated receipts referring, at least partially, to a previous period of the contract.
III.
CONSIDERATIONS OF THE DRC JUDGE
a.
Competence and applicable legal framework
13.
First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as Chamber
or DRC 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 11 June 2021 and
submitted for decision on 11 August 2021. Taking into account the wording of art. 21 of
the January 2021 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
14.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22
lit. b of the Regulations on the Status and Transfer of Players (edition February 2021), he is
competent to deal with the matter at stake, which concerns an employment-related dispute
with an international dimension between a player and a club.
15.
Furthermore, the DRC 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 (edition February 2021),
and considering that the present claim was lodged on 11 June 2021, the aforementioned
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
16.
The DRC Judge recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC Judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which she may consider
evidence not filed by the parties.
17.
In this respect, the DRC Judge also recalled that in accordance with art. 6 par. 3 of Annexe
3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
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pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
18.
Merits of the dispute
The competence of the DRC Judge and the applicable regulations having been established,
the DRC Judge entered into the merits of the dispute. In this respect, the DRC Judge started
by acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
19.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties dispute that certain salary payments arising from
the employment contract were remitted to the player.
20.
In this context, the DRC Judge acknowledged that his task was to establish if the Claimant
is entitled to the claimed amounts in relation to the employment contract.
21.
On account of the above, the DRC Judge turned his attention to the arguments submitted
by the Respondent in its defence.
22.
In relation to the documentation provided by Respondent, the DRC judge recalled the basic
principle of the burden of proof, as stipulated in art. 12 par. 3 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. Similarly, the DRC judge referred to art. 9 par. 1 lit. e) of the
Procedural Rules which stipulates that all documents of relevance to the dispute shall be
submitted in the original version as well as translated into one of the official FIFA languages.
23.
In this context, the DRC judge noted that the Respondent did not provide a translated
version of the documents it enclosed to its submission. In view of the foregoing and taking
into consideration art. 9 of the Procedural Rules, the DRC judge decided that it could not
take into account the relevant documents which were not translated into an official FIFA
language.
24.
Consequently, the DRC judge considered that the Respondent had not sufficiently
substantiated its defence, as it did not present any conclusive documentary evidence which
could corroborate that certain amounts should be deducted from the outstanding salaries.
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ii. Consequences
25.
Consequently, the DRC Judge decided that, in accordance with the general legal principle
of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding
remuneration in the total amount of EUR 180,000, corresponding to his salaries as from
December 2020 until May 2021, plus 5% interest p.a. as of the respective due dates.
iii. Compliance with monetary decisions
26.
Finally, taking into account the consideration under number 15. above, the DRC Judge
referred to par. 1 lit. and 2 of art. 24bis 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.
27.
In this regard, the DRC 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.
28.
Therefore, bearing in mind the above, the DRC 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.
29.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
30.
The DRC 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.
31.
Costs
The DRC Judge referred to article 18 par. 2 of the Procedural Rules, according to which
“DRC proceedings relating to disputes between clubs and players in relation to the
maintenance of contractual stability as well as international employment related disputes
between a club and a player are free of charge”. Accordingly, the DRC Judge decided that
no procedural costs were to be imposed on the parties.
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IV.
DECISION OF THE DRC JUDGE
1.
The claim of the Claimant, Ante Kulusic, is accepted.
2.
The Respondent, MKE Ankaragucu SK, has to pay to the Claimant, the following amounts:
- EUR 30,000 as outstanding remuneration plus 5% interest p.a. as from 1 January 2021 until
the date of effective payment;
- EUR 30,000 as outstanding remuneration plus 5% interest p.a. as from 1 February 2021 until
the date of effective payment.
- EUR 30,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 2021 until
the date of effective payment.
- EUR 30,000 as outstanding remuneration plus 5% interest p.a. as from 1 April 2021 until the
date of effective payment.
- EUR 30,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2021 until the
date of effective payment.
- EUR 30,000 as outstanding remuneration plus 5% interest p.a. as from 1 June 2021 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 article 24 bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not paid 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 paid by the end of
the of the three entire and consecutive registration periods.
5. The consequences shall only be enforced at the request of the Claimant in accordance with
article 24 bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and Transfer
of Players.
6. This decision is rendered without costs.
For the DRC Judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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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).
CONTACT INFORMATION:
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