Dispute Resolution Chamber
Texto da decisão
REF 20-01406 / FPSD-219
Decision of the
DRC Judge
passed on 24 March 2021
regarding an employment-related dispute concerning the player Konrad Michalak
BY:
Daan de Jong (Netherlands), DRC Judge
CLAIMANT:
Konrad Michalak, Poland
Represented by Ms Karolina Letniowska
RESPONDENT:
MKE Ankaragücü Spor Kulübü, Turkey
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I.
FACTS OF THE CASE
1.
On an unspecified date, the Polish player, Konrad Michalak (hereinafter: Claimant), and the
Turkish club, MKE Ankaragücü Spor Kulübü (hereinafter: the Respondent) concluded an
employment agreement valid from 31 January 2020 until 30 June 2020.
2.
According to art. 3 of the employment contract, the Claimant was to receive the following
remuneration:
EUR 25,000 on the signature day
EUR 35,000 on 29 February 2020,
EUR 35,000 on 31 March 2020,
EUR 35,000 on 30 April 2020,
EUR 35,000 on 31 May 2020
EUR 35,000 on 30 June 2020.
3.
On 15 July 2020, the Claimant put the Respondent in default asking for the payment of the
overdue amounts within 15 days.
4.
On 26 August 2020, the Claimant issued a further default notice, repeating the request for
payment of the amounts due as per contractual agreement and granting a deadline of 10 days.
II.
PROCEEDINGS BEFORE FIFA
5.
On 1 October 2020, the Claimant filed the present claim for overdue payables against the
Respondent before FIFA. The Respondent has not replied to the claim. A brief summary of the
Claimant’s position is detailed below.
a.
The claim of the Claimant
6.
According to the Claimant, the Respondent failed to pay him the following amounts:
EUR 28,500 out of EUR 35,000 due by 31 March 2020,
EUR 35,000 as corresponding to the salary of April 2020,
EUR 35,000 as corresponding to the salary of May 2020,
EUR 35,000 as corresponding to the salary of June 2020.
7.
As the Claimant has put in default the Respondent club twice and to no avail, the Claimant was
forced to lodge a claim after the fixed end date of the employment contract in order to claim
the above outstanding amounts.
8.
The requests for relief of the Claimant, were the following:
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EUR 28,500 plus 5% interest p.a. as of 1 April 2020,
EUR 35,000 plus 5% interest p.a. as of 1 May 2020,
EUR 35,000 plus 5% interest p.a. as of 1 June 2020,
EUR 35,000 plus 5% interest p.a. as of 1 July 2020.
9.
Furthermore, the Claimant requested the application of art. 12bis par.4 of the Regulations on
the Status and Transfer of Players.
III.
CONSIDERATIONS OF THE DRC JUDGE
a.
Competence and applicable legal framework
10.
First of all, the DRC 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 1 October 2020
and submitted for decision on 24 March 2020. Taking into account the wording of art. 21 of
the 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.
11.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 and 2. in combination with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players (edition February 2021), the DRC Judge is
competent to deal with the matter at stake, which concerns an employment-related dispute
with an international dimension between a Polish player and a Turkish club.
12.
Subsequently, 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 1 October 2020, the October 2020 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b.
Burden of proof
13.
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 he may consider evidence not filed by the
parties.
14.
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 pertaining to
the application of the Regulations, any documentation or evidence generated or contained in
TMS.
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c.
15.
Merits of the dispute
The competence of the DRC Judge and the applicable regulations having been established, he
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, he 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
16.
The foregoing having been established, the DRC Judge acknowledged that the Claimant is
claiming outstanding remuneration in the total of EUR 133,500 corresponding to part of the
salary of March 2020 as well as the full salaries of April, May and June 2020.
17.
In this context, the DRC judge took particular note of the fact that, on 15 July 2020, the
Claimant put the Respondent in default of payment of the aforementioned amounts, setting a
time limit of 15 days to remedy the default. Then on 26 August 2020, the Claimant issued a
further default notice, repeating the request for payment of the amounts due as per contractual
agreement and granting a deadline of 10 days for the Respondent to remedy the default.
18.
Consequently, the DRC judge concluded that the Claimant had duly proceeded in accordance
with art. 12bis par. 3 of the Regulations, which stipulates that the creditor (player or club) must
have put the debtor club in default in writing and have granted a deadline of at least ten days
for the debtor club to comply with its financial obligation(s).
19.
Subsequently, the DRC judge took into account that the Respondent, for its part, failed to
present its response to the claim of the Claimant, in spite of having been invited to do so. In
this way, the DRC judge considered that the Respondent renounced its right to defence and
thus accepted the allegations of the Claimant.
20.
Furthermore, as a consequence of the aforementioned consideration, the DRC judge concurred
that in accordance with art. 9 par. 3 of the Procedural Rules he 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.
21.
Having said this, the DRC judge acknowledged that, in accordance with the employment
contract provided by the Claimant, the Respondent was obliged to pay to the Claimant the
following amounts:
EUR 25,000 on the signature day,
EUR 35,000 on 29 February 2020,
EUR 35,000 on 31 March 2020,
EUR 35,000 on 30 April 2020,
EUR 35,000 on 31 May 2020,
EUR 35,000 on 30 June 2020.
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22.
Taking into account the documentation presented by the Claimant in support of his petition,
the DRC judge concluded that the Claimant had substantiated his claim pertaining to overdue
payables with sufficient documentary evidence.
23.
On account of the aforementioned considerations, the DRC judge established that the
Respondent failed to remit the Claimant’s remuneration in the total amount of EUR 133,500
corresponding to part of the salary of March 2020 as well as the full salaries of April, May and
June 2020.
24.
In addition, the DRC judge established that the Respondent had delayed a due payment for
more than 30 days without a prima facie contractual basis.
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 overdue payables in the
total amount of EUR 133,500.
26.
In addition, taking into account the Claimant’s request as well as the constant practice of the
Dispute Resolution Chamber, the DRC judge decided that the Respondent must pay to the
Claimant interest of 5% p.a. on the amount of EUR 133,500 as from the day following the
respective due dates until the date of effective payment.
27.
In continuation, taking into account the consideration under number II./24. above, the DRC
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.
28.
In this context, the DRC judge established that by virtue of art. 12bis par. 4 of the Regulations
he has competence to impose sanctions on the Respondent. In this regard, bearing in mind that
the Respondent did not reply to the claim of the Claimant as well as the fact that the present
matter constitutes the Respondent’s 8th offence in overdue payables in the last two years (cf.
matters ref. no. 19-00806, 19-00572, 19-01478, 19-02093, 19-02050, 19-00641 and 2001659), the DRC judge decided to impose a fine on the Respondent in accordance with art.
12bis par. 4 lit. c) of the Regulations. Furthermore, taking into consideration the amount due
of EUR 133,500, the DRC judge regarded a fine amounting to CHF 52,500 as appropriate and
hence decided to impose said fine on the Respondent.
29.
In this connection, the DRC judge wished to highlight that a repeated offence will be considered
as an aggravating circumstance and lead to more severe penalty in accordance with art. 12bis
par. 6 of the Regulations.
ii. Compliance with monetary decisions
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30.
Finally, the DRC Judge referred to par. 1 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.
31.
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 and for the
maximum duration of three entire and consecutive registration periods.
32.
Therefore, bearing in mind the above, the DRC Judge decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from the
moment in which the Claimant, communicates the relevant bank details to the Respondent,
provided that the decision is final and binding, a ban from registering any new players,
either nationally or internationally, for the maximum duration of three entire and
consecutive registration periods shall become effective on the Respondent in accordance
with art. 24bis par. 2 and 4 of the Regulations.
33.
The DRC Judge recalled that the above-mentioned bans will be lifted immediately and prior
to its complete serving upon payment of the due amounts, in accordance with art. 24bis
par. 3 of the Regulations.
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IV. DECISION OF THE DRC JUDGE
1.
The claim of the Claimant, Konrad Michalak, is accepted.
2.
The Respondent, MKE Ankaragücü Spor Kulübü, has to pay to the Claimant the following amount:
- EUR 133,500 as outstanding remuneration plus 5% interest p.a. as follows:
o 5% interest p.a. on the amount of EUR 28,500 as of 1 April 2020 until effective
payment,
o 5% interest p.a. on the amount of EUR 35,000 as of 1 May 2020 until effective
payment,
o 5% interest p.a. on the amount of EUR 35,000 as of 1 June 2020 until effective
payment,
o 5% interest p.a. on the amount of EUR 35,000 as of 1 July 2020 until effective
payment.
3.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
4.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
5.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
6. A fine of CHF 52,500 is imposed on the Respondent. The fine must be paid within 45 days of
notification of the present decision to FIFA to the following bank account with reference to case
no. 20-01406/ifa:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
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7. In the event that the fine mentioned in point 6. above is not paid within the applicable deadline,
the matter shall be referred to FIFA’s Disciplinary Committee for consideration and a formal
decision.
For the Dispute Resolution Chamber:
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:
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
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