Labour Disputes
Texto da decisão
REF FPSD-8275
Decision of the
Dispute Resolution Chamber
passed on 25 January 2023
regarding an employment-related dispute concerning the player Saba
Lobjanidze
BY:
Dana Al-Noaimi (Qatar), Single Judge of the Dispute Resolution Chamber
CLAIMANT:
Saba Lobjanidze, Georgia
Represented by Sami DINC
RESPONDENT:
MKE Ankaragucu SK, Türkiye
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REF FPSD-8275
I. Facts of the case
1.
On 31 January 2020, the Georgian player, Saba Lobjanidze (hereinafter: Claimant or player)
and the Turkish club, MKE Ankaragucu SK (hereinafter: club or Respondent) concluded an
employment contract (hereinafter: contract) valid as from 31 January 2020 until 31 May
2021.
2.
According to the contract, the Respondent undertook to pay the player the following
amounts “net”:
-
EUR 187,250 during the residual season 2019/2020;
EUR 374,500 during the season 2020/2021.
3.
Art. 3 III. Lit. b) of the contract establishes: “The amounts stated in the agreement are net
and taxes and withholding taxes shall be paid by the club”.
4.
On 31 March 2021, based on the tax declaration filed by the player, the Turkish tax
authorities requested payment of Turkish Lira (TRY) 960,360.49.
5.
On 31 March 2021, the player forwarded the tax invoice to the club in order to pay it in
accordance with the contract.
6.
On 22 September 2022, the Turkish tax authorities “implemented seizure proceedings”
against the player since the tax invoice for 2020 remained unpaid.
7.
On 12 October 2022, the player paid the amount of TRY 1,233,114 to the Turkish tax
authorities.
8.
On 17 October 2022, the Claimant put the Respondent in default and requested payment
of TRY 1,233,114 within 10 days.
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II. Proceedings before FIFA
9.
On 18 November 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
10. In his claim, the Claimant requested payment of TRY 1,233,114 plus 9% interest p.a. as of
12 October 2022.
11. In his claim, the player argued that the club failed to remit the tax payments to the Turkish
tax authorities even though the wording of the contract was clear defining net payments.
12. The player held that he forwarded the tax invoice of 2020 to the club, but after he was
notified by the tax authorities that the invoice remained unpaid, he had to pay the amount
initially invoiced plus default interest (which led to the amount of TRY 1,233,114).
13. In this regard, the Claimant remitted payment receipts.
14. The player claimed interest of 9% p.a. based on Turkish law.
15. Said amount consists of the actual amount from the invoice plus default interest.
b. Position of the Respondent
16. The Respondent failed to reply to the claim.
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III. 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 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 18
November 2022 and submitted for decision on 25 January 2023. Taking into account the
wording of art. 34 of the October 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.
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 (October 2022),
she is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Georgian 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, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (October 2022 edition),
and considering that the present claim was lodged on 18 November 2022, the October
2022 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 it 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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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 Chamber 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 it 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
6.
The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the claim of the player against the club for outstanding
remuneration in relation to a tax invoice.
7.
According to the player, the club failed to remit the amount of TRY 1,233,114, which was
paid by the player to the tax authorities after the club had previously failed to pay the
initial invoice.
8.
The Respondent, for its part, failed to present its response to the claim of the player, in
spite of having been invited to do so. In this way, the Single Judge considered that the
Respondent renounced its right of defence and, thus, accepted the allegations of the
Claimant.
9.
Furthermore, as a consequence of the aforementioned consideration, the Single Judge
concurred that in accordance with art. 21 par. 1 of the Procedural Rules it shall take a
decision upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
10. In this context, the Single Judge acknowledged that the Claimant’s allegations remained
uncontested. Taking into account the documentation on file, especially the tax invoices
addressed to the player and the clear wording of the employment contract, the Single
Judge decided to award the amount claimed.
ii. Consequences
11. 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 amount of TRY 1,233,114.
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12. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber in this regard, the Single Judge decided to award the Claimant
interest at the rate of 5% p.a. on the outstanding amounts as from 12 October 2022 (date
of payment of the relevant invoice) until the date of effective payment.
iii. Compliance with monetary decisions
13. 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.
14. 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.
15. 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.
16. 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.
17. 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
18. 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 Chamber decided that no procedural costs were
to be imposed on the parties.
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19. 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.
20. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for
relief made by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Saba Lobjanidze, is partially accepted.
2.
The Respondent, MKE Ankaragucu SK, has to pay to the Claimant, the following amount(s):
- Turkish Lira (TRY) 1,233,114 plus 5% interest p.a. as from 12 October 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.
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
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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).
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