Labour Disputes
Texto da decisão
REF FPSD-2844
Decision of the
Dispute Resolution Chamber
passed on 14 October 2021
regarding an employment-related dispute concerning the player Marko
Milinkovic
COMPOSITION:
Frans de Weger (Netherlands), Chairperson
Roy Vermeer (Netherlands), member
José Luis Andrade (Portugal), member
CLAIMANT:
Marko Milinkovic, Serbia
Represented by Mirko Poledica
RESPONDENT:
Giresunspor, Turkey
Represented by Atahan Sevimli
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I.
Facts of the case
1.
On 10 January 2020, the Serbian player, Marko Milinkovic (hereinafter: the Claimant), and
the Turkish club, Giresunspor (hereinafter: the Respondent) signed an employment contract,
valid as from 10 January 2020 until 31 May 2021.
2.
On the same day, the parties concluded an additional contract, containing additional
conditions relating to the employment relationship of the parties.
3.
Pursuant to art. 6 of the additional contract, the Claimant was entitled to, inter alia, the
following remuneration:
(a) For the season 2019/2020
-
EUR 15,000, payable on 31 May 2020;
EUR 60,000, if the Respondent is promoted to the Super League.
(b) For the season 2020/2021
4.
EUR 75,000 on 31 July 2020;
EUR 20,000 on 31 August 2020;
EUR 20,000 on 30 September 2020;
EUR 20,000 on 31 October 2020;
EUR 20,000 on 30 November 2020;
EUR 20,000 on 31 December 2020;
EUR 20,000 on 31 January 2021;
EUR 20,000 on 28 February 2021;
EUR 20,000 on 31 March. 2021;
EUR 20,000 on 30 April 2021;
EUR 20,000 on 31 May 2021.
By correspondence dated 3 June 2021, the Claimant put the Respondent in default of
payment of the amount of EUR 345,000 relating to his outstanding remuneration setting a
time limit of 10 days in order to remedy the default, however to no avail.
II. Proceedings before FIFA
5.
On 18 June 2021, the Claimant filed the claim at hand before FIFA.
a. Position of the Claimant
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6.
The requests for relief of the Claimant, were that the Respondent pay him the amount of EUR
345,000 as outstanding remuneration, plus 5% interest p.a. until the date of effective
payment, as follows:
-
EUR 10,000, plus 5 % interest per annum from 1 June 2020;
EUR 75,000, plus 5 % interest per annum from 1 August 2020;
EUR 20,000, plus 5 % interest per annum from 1 September 2020;
EUR 20,000, plus 5 % interest per annum from 1 October 2020;
EUR 20,000, plus 5 % interest per annum from 1 November 2020;
EUR 20,000, plus 5 % interest per annum from 1 December 2020;
EUR 20,000, plus 5 % interest per annum from 1 January 2021;
EUR 20,000, plus 5 % interest per annum from 1 February 2021;
EUR 20,000, plus 5 % interest per annum from 1 March 2021;
EUR 20,000, plus 5 % interest per annum from 1 April 2021;
EUR 20,000, plus 5 % interest per annum from 1 May 2021;
EUR 20,000, plus 5 % interest per annum from 1 June 2021;
EUR 60,000, plus 5 % interest per annum from 18 June 2021 (bonus payment).
b. Position of the Respondent
7.
In its reply to the claim, the Respondent stipulated the following:
“We hereby reject the proposal of FIFA general secretariat because of the false claims of the
Claimant Mr. Marko Milinkovic. Despite the claims of the Claimant, the Club had made several
payments to the Claimant and the proposed amount is not reflecting the true amounts.
Therefore the Respondent has no chance but to reject the proposal of the FIFA General
Secretariat.”
8.
In this context, the Respondent submitted several payment documents as proof of payment
made to the Claimant.
c. Additional comments of the Claimant
9.
On 23 July 2021, the payment documents as received by the Respondent were sent to the
Claimant for his comment. In reply, thereto the Claimant indicated that many of the payments
are false.
10. The Claimant provided a detailed explanation of each payment document and mostly related
to match premiums paid in Turkish Lira (TRY), which did not relate to the salaries of the
Claimant.
11. In relation to the following payments, which were paid in EUR, the Claimant stipulated the
following:
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-
-
The payment dated 10 January 2020 in the amount of EUR 62,500 is payment for the
season 2019/20 and the Claimant received this amount. This payment is not part of the
claim.
The payment dated 24 June 2020 in the amount of EUR 25,000 is payment for the season
2019/20 and the Claimant received this amount. This payment is not part of the claim.
The payment dated 21 January 2021 in the amount of EUR 20,000 is payment for the
season 2020/21 and the Claimant received this amount.
The payment dated 19 February 2021 in the amount of EUR 10,000 is payment for the
season 2020/21 and the Claimant received this amount.
The Respondent sent two payments dated 8 April 2021 in the amount of EUR 10,000
each, the Claimant received only one payment in the amount of EUR 10,000.
12. In conclusion, the Claimant stipulated that the Respondent was obliged to pay a total amount
of EUR 472,500, corresponding to EUR 137,500 for the second half of the season 2019/20,
EUR 275,000 for the season 2020/21 and bonus in the amount of EUR 60,000 for promotion
to Super league.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. 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 18 June 2021 and submitted for decision
on 12 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 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 (August 2021 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 Serbian player and a
Turkish club.
15. 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 Player (August 2021 edition), and
considering that the present claim was lodged on 18 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
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16. 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. Merits of the dispute
17. 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
18. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that on 10 January 2020, the Claimant and the Respondent
concluded an employment contract valid as from 10 January 2020 until 31 May 2021.
19. What is more, the members of the Chamber noted that the parties disagree on whether the
Respondent had duly complied with its financial obligations as per the contract, in light of
the fact that the Respondent had submitted several payment receipts, on the basis of which
it assumes that it complied with its contractual obligations towards the Claimant.
20. The DRC observed that the Claimant lodged a claim in front of FIFA against the Respondent,
seeking payment of the total amount of EUR 345,000, asserting that the Respondent had not
fulfilled its contractual obligations towards him.
21. The members of the Chamber noted that the Respondent in its reply to the claim argued that
it rejected the claim of the Claimant as it made several payments to the Claimant and
accordingly submitted payment documents, which according to the Respondent illustrated
the payments it had made to the Claimant.
22. In this respect, the Chamber pointed out that – after having analysed the submissions of the
parties - the majority of the documentation submitted by the 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 it
financial obligations as per the contract, as it makes reference to match premiums paid in
Turkish Lira. In this respect, the Chamber remarked that said documents appear to belong to
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the payment of match premiums in Turkish Lira and can therefore not be considered as salary
payments, which would have been payable in EUR.
23. The Chamber however noted that the Claimant confirmed receiving the salary payments
made on 21 January 2021, 19 February 2021 and 8 April 2021 in the total amount of EUR
40,000. Based on the foregoing, the Chamber decided to acknowledge that the Respondent
paid an amount of EUR 40,000 to the Claimant, which shall be factored in the outstanding
remuneration that is awarded to the Claimant.
24. As a result of the foregoing, the members of the Chamber came to the conclusion that
arguments of the Respondent cannot be upheld and decided that the Claimant is entitled to
his outstanding remuneration as claimed in the claim, minus the amount of EUR 40,000, the
receipt of which is confirmed by the Claimant.
ii. Consequences
25. Having stated the above, the members of the Chamber turned their attention to the question
of the consequences of such unjustified breach of contract committed by the Respondent.
26. First of all, the members of the Chamber concurred that the Respondent must fulfill its
obligations as per the employment contract in accordance with the general legal principle of
“pacta sunt servanda”.
27. Consequently, the Chamber decided that the Respondent is liable to pay to the Claimant his
outstanding remuneration in the amount of EUR 285,000 less EUR 40,000 (payments made
by Respondent), therefore, the total amount of EUR 245,000, corresponding to the following:
-
EUR 10,000 payable on 31 May 2020;
EUR 75,000 payable on 31 July 2020;
EUR 20,000 payable on 31 August 2020;
EUR 20,000 payable on 30 September 2020;
EUR 20,000 payable on 31 October 2020;
EUR 20,000 payable on 30 November 2020;
EUR 20,000 payable on 31 December 2020;
EUR 10,000 payable on 28 February 2021;
EUR 20,000 payable on 31 March 2021;
EUR 10,000 payable on 30 April 2021; and
EUR 20,000 payable on 31 May 2021.
28. Moreover, in connection with the bonus for promotion to the Super League in the amount
of EURE 60,000 as claimed by the Claimant, the DRC concluded that there is a contractual
basis for awarding said bonus, as well as that the Claimant had submitted evidence on the
basis of which it could be established that the Respondent was indeed promoted to the Super
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League. Accordingly, the DRC decided to award the bonus in the amount of EUR 60,000 to
the Claimant.
29. What is more, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the Chamber decided to award 5% interest p.a. on the above amounts
from the respective due dates until the date of effective payment.
30. The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
iii. Compliance with monetary decisions
31. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
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.
32. 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.
33. 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. 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 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. 24bis par. 8 of
the Regulations.
d. Costs
36. 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
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agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were to
be imposed on the parties.
37. 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.
38. Lastly, the DRC 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, Marko Milinkovic, is partially accepted.
2.
The Respondent, Giresunspor, has to pay to the Claimant, the following amount(s):
(a)
EUR 245,000 as outstanding remuneration, plus 5% interest p.a. until the date of
effective payment as follows:
-
(b)
on the amount of EUR 10,000 as from 1 June 2020
on the amount of EUR 75,000 as from 1 August 2020
on the amount of EUR 20,000 as from 1 September 2020
on the amount of EUR 20,000 as from 1 October 2020
on the amount of EUR 20,000 as from 1 November 2020
on the amount of EUR 20,000 as from 1 December 2020
on the amount of EUR 20,000 as from 1 January 2021
on the amount of EUR 10,000 as from 1 March 2021
on the amount of EUR 20,000 as from 1 April 2021
on the amount of EUR 10,000 as from 1 May 2021
on the amount of EUR 20,000 as from 1 June 2021
EUR 60,000 as bonus, plus 5% interest p.a. as from 18 June 2021 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. 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.
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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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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