DRC Overdue Payables
Texto da decisão
REF. FPSD-14090
Decision of the
Dispute Resolution Chamber
passed on 13 June 2024
regarding an employment-related dispute concerning
the player Silviu Lung
BY:
Clifford J. HENDEL (USA), Chairperson
Laurel VAURASI (Fiji), member
Angela COLLINS (Australia), member
CLAIMANT:
Silviu Lung, Romania
RESPONDENT:
Yukatel Kayserispor, Türkiye
pg. 2
REF. FPSD-14090
I. Facts of the case
1. The player YUKATEL KAYSERİSPOR concluded an employment contract valid as from 17 August
2020 until 31 June 2021. Extendable for one additional season.
2. Art. 6 of the contract stipulated the following:
ARTICLE 6- OBLIGATIONS OF THE CLUB
The Club shall pay the amounts as written below to the Player in return of his services subject
to this
Contract, all payments indicated in this Contract are to be considered as "net" payments. The
obligation of taxes and stamp duty shall be borne by the Club.
a) A bonus for the signing of the présent contract, amounting to a total of €204.000,00 payable
as follows:
instalment 1 - 152.000,00 Euros on 19.08.2020
instalment 2 - 52.000,00 Euros on 19.08.2021 (if the contract will not be extended for
2021/2022 season, this instalment will not be paid)
b) For 2020/2021 Football Season:
Salary of the Player: €550.000,00
The afore mentioned amount has to be paid to the Player by the Club as the following:
€550.000,00 in ten (10) equal installments of €55.000,00 as monthly salary due to be on the
last day of the relevant month
31.08.2020 : 55.000 Euro -Euro
30.09.2020 : 55.000 Euro
31.10.2020 : 55.000 Euro
30.11.2020 : 55.000 Euro
31.12.2020 ; 55.000 Euro
31.01.2021 : 55.000 Euro
28.02.2021 : 55.000 Euro
31.03.2021 : 55.000 Euro
30.04.2021 : 55.000 Euro
31.05.2021 : 55.000 Euro
For 2021/2022 Football Season:
Salary of the Player: €650.000,00.
The aforementioned amount has to be paid to the Player by the Club as the following:
€650.000,00 in ten (10) equal installments of €65.000,00 as monthly salary due to be on the
last day of the relevant month
31.08.2021 : 65.000 Euro -Euro
30.09.2021 : 65.000 Euro
31.10.2021 : 65.000 Euro
30.11.2021 : 65.000 Euro
31.12.2021 ; 65.000 Euro
pg. 3
REF. FPSD-14090
31.01.2022 : 65.000 Euro
28.02.2022 : 65.000 Euro
31.03.2022 : 65.000 Euro
30.04.2022 : 65.000 Euro
31.05.2022 : 65.000 Euro
a.2) Accomodation and Transportation Support
In addition to the remuneration above, the Club shall pay to the Player €10.000,00 per season
for accommodation and transportation expenses of the Player.. “.
3. On 4 March 2022, the club issued the following document:
FACTS AND DEFAULT NOTICES
4. On 22 December 2022, the player sent a default notice requesting the payment of EUR 280,000
withing 15 days.
II. Proceedings before FIFA
5. On 17 March 2024, the player lodged a claim before for outstanding remuneration and requested
the following:
EUR 280,000 as outstanding remuneration, further detailed as follows:
Item
Entitled rights for January 2022
February 2022
March 2022
April 2022
May 2022
Total for period Feb-May 2022
Obligation for 2020/2021 season
Obligation for 2021/2022 season
-
Amount (Euros)
10,000
65,000
65,000
65,000
65,000
260,000
10,000
10,000
TRL 1,648,803.92 (note: approx.. EUR 47,000) as taxes related to the contract for the year
pg. 4
REF. FPSD-14090
-
2020, as well as 5% annual interest on this amount. In this respect, the player explained that
the Turkish Tax Authority issued a payment order on 25 July 2022 (note documentation on
file).
Romanian Lei (RON) 11,830.98 as attorney fees;
6. According to the player, the club has not paid the taxes related to the contract for the year 2020.
He stated that the Turkish tax authorities have initiated legal proceedings against him for nonpayment of these taxes, and the player has received a payment order for tax penalties.
7. In its reply, the club acknowledged a debt of EUR 130,000.
8. As to the claimed taxes, the club argued that they are the personal responsibility of the player,
and the club cannot be expected to compensate for unpaid taxes. The club argued that the
player should have contacted the relevant tax office and sought legal assistance to fulfil his tax
obligations.
9. The club believed that the player's capacity to seek remedy for allegedly unpaid taxes of the fiscal
year 2020 extinguished on 31 December 2022, which was almost 1.5 years before the date of the
claim. The claim for allegedly unpaid taxes is considered inadmissible.
10. As to the request for allegedly unpaid remuneration, the club argued that these claims are timebarred as they became due more than 2 years before the date of the claim.
pg. 5
REF. FPSD-14090
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 17 March 2024 and submitted
for decision on 13 June 2024. Taking into account the wording of art. 34 of the March 2024
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 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 2023 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 Romanian player
and a Turkish club.
3.
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 (October 2022 edition), and
considering that the present claim was lodged on 17 March 2024, the March 2024 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
4.
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. Admissibility
5.
At this point, the Chamber referred to art. 23 par. 3 of the Regulations, which stipulates
that the decision-making bodies of FIFA shall not hear any dispute if more than two years
have elapsed since the facts leading to the dispute arose. The application of this time limit
shall be examined ex officio in each individual case.
pg. 6
REF. FPSD-14090
6.
In this context, the Chamber recalled that the present claim was lodged in front of FIFA on
17 March 2024. Therefore, in line with art. 23 par. 3 of the Regulations, any amounts fallen
due before 17 March 2022 are affected by the statute of limitations.
7.
The Chamber noted that, in the present case, the Claimant inter alia requested the payment
of certain amounts that were due prior to said date. The Chamber thus concluded that the
Claimant’s request is partially time-barred. Consequently, the specific part of the Claimant’s
claim related to the payment of due prior to 17 March 2022 is considered inadmissible.
8.
The claim of the player was lodged on 17 March 2024. Therefore, any amount due prior to
17 March 2022 shall be considered as time-barred. As a result, the claim is partially timebarred.
9.
In addition, the Chamber observed that the player requested the reimbursement of taxes
for the year 2020, based on a notification from the Turkish tax authority received on 25 July
2022.
10. In this respect, the Chamber noted that the player attached a unilateral document stamped
by the club and issued on 4 March 2022, in which the latter guarantees to pay the player’s
“past and future” taxes. The Chamber considered that this shall be understood as a
novation of the debt and thus the claim for taxes is not time-barred.
d. Merits of the dispute
11. 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.
i. Main legal discussion and considerations
12. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the matter at stake concerns the payment of
outstanding remuneration.
13. In this respect, the Chamber observed that the club does not contest its debt concerning
the non-prescribed amounts.
14. In this regard, the Chamber noted that the player requested the payment of his
remuneration since january 2022 until may 2022, as established in the point I. 5 above.
15. Given the partial prescription of the claim and the fact that the club did not contest that
said amounts remained unpaid, the Chamber player is entitled to the following amounts:
pg. 7
REF. FPSD-14090
March 2022
April 2022
May 2022
Accomodation
EUR 65,000
EUR 65,000
EUR 65,000
EUR 10,000 (due on 1 June 2022)
EUR 205,000 net
16. In addition, following the longstanding jurisprudence of the DRC, the Chamber decided to
award 5% interest p.a. as from the due dates.
17. The Chamber went on to examine document from the Turkish Tax Authority, dated 25 July
2022, issued a payment order against Silviu Lung for unpaid taxes related to the year 2020.
This order indicated that the player was held liable for the tax obligations arising from his
earnings while contracted with Yukatel Kayserispor. The player presented this order as
evidence that the taxes had not been paid by the club, despite the contractual agreement
stating that the club would bear the responsibility for these taxes.
18. In this regard, the Chamber noted that the club committed on 4 March 2022 that it would
cover the debt. Consequently, the club shall reimburse TRL 1,648,803.92 to the player, as
per the aforementioned decision and in accordance with its own unilateral commitment.
ii. Compliance with monetary decisions
19. 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.
20. 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.
21. 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.
22. 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.
pg. 8
REF. FPSD-14090
23. 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.
e. Overdue payables
24. In continuation, the Chamber 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.
25. To this end, the Chamber 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.
26. Accordingly, the Chamber confirmed that the club had delayed a due payment without a
prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
27. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the club. On account of the above, the Chamber
decided to impose a fine in the amount of USD 10,000 on the club in accordance with art.
12bis par. 4 lit. of the Regulations.
28. In this connection, the Chamber 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.
f. Costs
29. 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.
30. 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.
31. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 9
REF. FPSD-14090
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Silviu Lung, is partially accepted insofar it is admissible.
2.
The Respondent, Yukatel Kayserispor, must pay to the Claimant the following amounts:
- EUR 205,000 net as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount EUR 65,000 net of as from 1 April 2022 until the date of effective payment;
- 5% interest p.a. over the amount EUR 65,000 net of as from 1 May 2022 until the date of effective payment;
- 5% interest p.a. over the amount EUR 65,000 net of as from 1 June 2022 until the date of effective payment;
- 5% interest p.a. over the amount EUR 10,000 net of as from 2 June 2022 until the date of effective payment;
- TRL 1,648,803.92 as reimbursement for taxes.
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 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.
2.
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.
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.
8.
A fine in the amount of USD 10,000 imposed on the Respondent, which must be paid to
FIFA within 30 days of notification of this decision. Such fine must be paid to the
following bank account with a clear reference to the case FPSD-14090:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230
IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 10
REF. FPSD-14090
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
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pg. 11