DRC Overdue Payables
Texto da decisão
REF FPSD-2889
Decision of the
Dispute Resolution Chamber
passed on 13 October 2021
regarding an employment-related dispute concerning the player Muris
Mesanovic
BY:
Mario Flores Chemor (Mexico)
CLAIMANT:
Muris Mesanovic, Bosnia and Herzegovina
Represented by Emir Spaho
RESPONDENT:
Denizlispor Kulubu, Turkey
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REF FPSD-2889
I.
Facts of the case
1.
On 28 August 2020, the Bosnian player, Muris Mesanovic (hereinafter: the Claimant), and the
Turkish club, Denizlispor Kulubu (hereinafter: the Respondent) signed an employment
contract valid as from 28 August 2020 to 31 May 2021.
2.
In accordance with clause 3 of the contract, the Respondent undertook to pay to the Claimant
for the 2020 /2021 football season a total net salary of EUR 350,000, payable in 10
instalments as follows:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
3.
EUR 35,000 net on date of signature;
EUR 35,000 net on 30 September 2020;
EUR 35,000 net on 31 October 2020;
EUR 35,000 net on 30 November 2020;
EUR 35,000 net on 31 December 2020;
EUR 35,000 net on 31 January 2021;
EUR 35,000 net on 28 February 2021;
EUR 35,000 net on 30 April 2021; and
EUR 35,000 net on 31 May 2021.
By correspondence dated 7 June 2021, the Claimant sent a default notice to the Respondent,
granting it a 10 days’ deadline to pay the amount of EUR 175,000 corresponding to
outstanding salaries of January 2021 (EUR 35,000), February 2021 (EUR 35,000), March 2021
(EUR 35,000), April 2021 (EUR 35,000) and May 2021 (EUR 35,000), however to no avail.
II. Proceedings before FIFA
4.
On 23 June 2021, the Claimant filed the claim at hand before FIFA.
a. Position of the Claimant
5.
According to the Claimant, he has fulfilled all his contractual obligations, however the
Respondent has failed to pay all the due monthly amounts, as stipulated in the contract.
6.
The requests for relief of the Claimant, were the following:
(a) that the Respondent pay to the Claimant the outstanding remuneration in the amount
of EUR 175,000 [outstanding salaries of January 2021 (EUR 35,000), February 2021 (EUR
35,000), March 2021 (EUR 35,000), April 2021 (EUR 35,000) and May 2021 (EUR
35,000)], plus 5% interest p.a. from the respective due dates until the date of effective
payment; and
(b) that art.12bis sanctions be imposed on the Respondent.
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b. Position of the Respondent
7.
In its reply to the claim the Respondent indicated that it has fulfilled its obligations towards
the Claimant and presented payment receipts of payments up to an amount of EUR 175,000
and Turkish Lira (TRY) 39,100, which were made to the Claimant.
8.
On account of the above, the Respondent, requested that the DRC:
“Reject all the claims of the claimant”
c. Additional comments Claimant
9.
On 23 July 2021, the payment receipts as submitted by the Respondent was sent to the
Claimant for his comment and the Claimant in this regard, stated that “the statement of the
Respondent, that he fulfilled his obligations to the Claimant, is incorrect and it is not in
accordance with the facts.”
10. The Claimant mentioned that the amounts reflected on the bank statements equals to EUR
175,000, the Claimant in his claim “seeks the remaining 5 unpaid monthly amounts,
amounting to a total of EUR 175,000, together with the default interest.”
11. Moreover, the Claimant indicated that the bank statement in the amount of Turkish Lisa (TRY)
39,100 submitted by the Respondent only refers to the win bonus and not to the salary that
the Respondent owes to the Claimant.
12. The Claimant further proposed that the DRC imposes article 12bis sanctions on the
Respondent.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. 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, it took note that the present matter was presented to FIFA on 23 June 2021 and
submitted for decision on 13 October 2021. Taking into account the wording of art. 34 of
the October 2021 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.
14. 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 (August 2021 edition), the Single Judge is competent to
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deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Bosnian player and a Turkish club.
15. Subsequently, the Single Judge 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 Player (August 2021 edition), and
considering that the present claim was lodged on 23 June 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
16. 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).
c. Merits of the dispute
17. Its 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 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
18. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that on 28 August 2020, the Claimant and the Respondent
concluded an employment contract valid from 28 August 2020 to 31 May 2022.
19. The Single Judge observed that the Claimant lodged a claim in front of FIFA against the
Respondent, asserting that the Respondent had not fulfilled its contractual obligations
towards him.
20. The Single Judge took note that the Respondent, in its reply argued that it fully complied with
its contractual obligations as detailed in the contract and submitted payment receipts as proof
thereof.
21. In this respect, the Single Judge pointed out that – after having analysed the submissions of
the parties – the bank statement in the amount of Turkish Lira 39,100 submitted by the
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Respondent, on the basis of which it should be established that the Respondent made all the
salary payments which are claimed by the Claimant, cannot be considered as decisive and
conclusive documentary evidence, on the basis of which it could established that the
Respondent complied with its financial obligations as per the contract, as it makes reference
to a win premium paid in Turkish Lira. In this respect, the Single Judge remarked that said
document appear to belong to the payment of a win premium in Turkish Lira and can
therefore not be considered as salary payments.
22. The Single Judge concluded that it is clear that up until 25 February 2021, the Claimant only
received salary payments in the total amount of EUR 175,000, however as detailed in clause
3 of the contract, the Respondent was obliged to pay to the Claimant the total remuneration
in the amount of EUR 350,000 for the contractual period.
23. As a result of the foregoing, the Single Judge concluded that the Respondent had to fulfil the
contractually agreed financial obligations as per the contract, which it failed to do.
ii. Consequences
24. 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, the Single
Judge decided, that the Respondent must fulfil its obligations in accordance with the general
legal principle of “pacta sunt servanda”.
25. Consequently, the Single Judge decided that the Respondent is liable to pay to the Claimant
his outstanding remuneration, in the amount of EUR 175,000 net, corresponding to:
(a)
(b)
(c)
(d)
(e)
EUR 35,000 net – as salary payment due on 31 December 2020;
EUR 35,000 net – as salary payment due on 31 January 2021;
EUR 35,000 net – as salary payment due on 28 February 2021;
EUR 35,000 net – as salary payment due on 30 April 2021; and
EUR 35,000 net – as salary payment due on 31 May 2021.
26. Furthermore, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the Single Judge decided to award 5% interest p.a. on the above
amounts from the respective due dates until the date of effective payment.
27. In addition, the Single Judge established that the Respondent had delayed a due payment for
more than 30 days without a prima facie contractual basis.
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.
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29. Bearing in mind the above, the Single Judge established that in virtue of art. 12bis par. 4 of
the Regulations he has competence to impose sanctions on the Respondent. In this context,
the Single Judge highlighted that over the past two years, under case ref.no. FPSD-2418, the
Respondent had already been found to have delayed a due payment for more than 30 days
without a prima facie contractual basis. In view of the above, the Single Judge decided to
impose a reprimand on the Respondent in accordance with art. 12bis par. 4 lit. b) of the
Regulations.
30. Moreover, the Single Judge referred to art. 12bis par. 6 of the Regulations, which establishes
that a repeated offence will be considered as an aggravating circumstance and lead to a more
severe penalty.
iii. Compliance with monetary decisions
31. 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, 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.
32. 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.
33. 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.
34. 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.
35. 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.
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d. Costs
36. 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.
37. 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.
38. 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, Muris Mesanovic, is accepted.
2.
The Respondent, Denizlispor Kulubu, has to pay to the Claimant, the amount of EUR 175,000
as outstanding remuneration plus 5% interest p.a. as until the date of effective payment as
follows:
(a) on the amount of EUR 35,000 as from 1 February 2021
(b) on the amount of EUR 35,000 as from 1 March 2021
(c) on the amount of EUR 35,000 as from 1 April 2021
(d) on the amount of EUR 35,000 as from 1 May 2021
(e) on the amount of EUR 35,000 as from 1 June 2021
▪
3.
A reprimand is imposed on the Respondent.
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
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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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