DRC Overdue Payables
Texto da decisão
REF. FPSD-15201
Decision of the
Dispute Resolution Chamber
passed on 3 October 2024
regarding an employment-related dispute concerning the player Jamiro
Gregory Monteiro Alvarenga
COMPOSITION:
Lívia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman
Khalid AWAD ALTHEBITY (Saudi Arabia), Member
Tomislav KASALO (Croatia), Member
CLAIMANT:
Jamiro Gregory Monteiro Alvarenga, the Netherlands
Represented by Oktay Düzgün
RESPONDENT:
Gaziantep Futbol Kulübü A.Ş., Türkiye
pg. 2
REF. FPSD-15201
I. Facts of the case
1. On 8 February 2024, the Dutch player Jamiro Gregory Monteiro (hereinafter, the “Claimant”
or “Player”) and the Turkish club Gaziantep Futbol Kulübü A.Ş. (hereinafter, the “Respondent”
or “Club”) concluded an employment contract (hereinafter, the “Contract”), valid as from 28
February 2024 until 30 June 2024.
2. In accordance with the Contract, the Respondent undertook to pay to the Claimant, inter
alia:
-
EUR 300,000 net for the 2023/2024 football season in the following instalments:
o EUR 75,000 on 28 February 2024
o EUR 75,000 on 30 March 2024
o EUR 75,000 on 30 April 2024
o EUR 75,000 on 31 May 2024
3. The Contract further provided:
“If the Player contributes to at least 7 (seven) goals and/or assists in Turkish Super League at the
remaining part of the 2023/2024 football season, the additional and accumulative sum of
15.000,00 (fifteen thousand) EUROS shall be paid to the Player. Since the bonuses are only valid
for the Turkish Super League games, the Ziraat Turkish Cup and/or other official or private
competitions/games will not be considered in the calculation of the bonuses. Bonuses will be
paid to the Player at the end of the 2023/2024 football season and by no later than 30 June
2024.”
“Except for the payments mentioned above and also non-regular bonuses determined
exclusively by the Club, no additional payment such as per-match bonuses, success bonuses
and/or premiums shall be made to the Player.”
“Premiums which will be paid to Football Player (winning, on terms, etc.) and premium payment
rates shall be exclusively determined by the Board of Directors of Club”
4.
On 19 April 2024, the Claimant and the Respondent signed a document (hereinafter: the
“Bonus Agreement”) which provided as follows:
“In accordance with the decision taken by our Club’s Board of Directors, in case Gaziantep FK
stays in the Turkish super league at the end of the 2023-2024 season, to be clear, Gaziantep FK
finished the Turkish Super League in the place 16th or higher level at the end of the 2023-2024
season and becomes eligible to play in the Turkish Super League in the 2024-2025 season, a
pg. 3
REF. FPSD-15201
success bonus of net 1,000,000 TL (One Million Turkish Liras) shall be paid by our club to all
professional players in the A Team.
[...]
The success bonus of 1,000,000 TL shall be paid [ . . . ] within 10 business days at the latest
following the match in which Gaziantep FK guarantees to stay in the Super League [ . . . .]”
5. On 25 June 2024 the Claimant sent a default notice to the Respondent citing the following
overdue remuneration:
1) “Player’s salary for the last two months according to the Contract;
2) Bonus for saving Club’s place in the Turkish Super League for the season of 2024/2025;
3) Bonuses for the won matches.”
6. In the default notice, the Claimant provided the Respondent 15 days to fulfil its financial
obligation.
II. Proceedings before FIFA
7. On 11 July 2024, the Claimant filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Position of the Claimant
8. According to the Claimant, the Club failed to remit the overdue payables following the
default notice.
9. The Claimant provided the following WhatsApp communication:
“Cemil Ibrahim Cansiz
“Hi how are you”
“I just received a bonus of 232.812 tl”
“yes bro like a last game they paid today”
“next week they willpay to another one”
“this like a %40-%50”
“I know bro”
“dont worry they ll fiz”
“fix”
“Ah ok just wanted to know”
“Next week is also from that other men?”
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REF. FPSD-15201
“Because from the president was 15k”
“yes”
“Right and the other was 5k”
“plus 5000”
“yes”
“Ok thank you”
10. The Claimant stated that he was entitled to the following payments under the Contract:
-
EUR 75,000 salary due 30 April 2024;
EUR 75,000 salary due 31 May 2024;
EUR 20,000 match bonus due 30 June 2024 of which the Claimant states 50% was paid;
TYR 1,000,000 pursuant to the Bonus Agreement.
11. The requests for relief of the Claimant were the following:
-
“Salary payment: EUR 150,000
Bonus payment: EUR 47,500
Interest: 5% p.m.
Costs for legal assistance outside this proceeding EUR 2,500 (fixed)
Additional compensation for breach of contract due to overdue payments: EUR 15,000
(10% of the totally overdue salary payments)”
b. Position of the Respondent
12. In its reply, the Respondent acknowledged that it did not fulfil the following instalments:
-
EUR 75,000 due 30 April 2024;
EUR 75,000 due 31 May 2024.
13. The Respondent cited for its failure to complete payment the Club’s economic difficulties
caused by fluctuations in the exchange rates between the Turkish Lira and the Euro, as well
as an earthquake that occurred on 6 February 2023 in the Club’s region.
14. Further, the Respondent argued that the other payment claimed by the Claimant for TRY
1,000,000 were not payable per the Contract and were not proven by the Claimant, citing
the following Contract provision:
15. “Except for the payments mentioned above and also non-regular bonuses determined exclusively
by the Club, no additional payment such as per-match bonuses, success bonuses and/or
premiums shall be made to the Player.”
pg. 5
REF. FPSD-15201
16. The Respondent requested that the claim be dismissed “to give [the Respondent] extra time
to pay for the salaries in accordance with the Contract.” Further, the Respondent requested
that no sporting sanctions be applied, should the Claimant’s request be accepted.
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REF. FPSD-15201
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Dispute Resolution Chamber (hereinafter: the 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 11 July 2024 and submitted for decision on 3
October 2024. Taking into account the wording of art. 34 of the March 2023 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.
18. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 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 Dutch player and
a Turkish club.
19. 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 (June 2024 edition), and
considering that the present claim was lodged on 11 July 2024, the June 2024 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
20. 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
21. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
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REF. FPSD-15201
i. Main legal discussion and considerations
22. The Chamber then moved to the substance of the matter, and took note of the fact that the
Claimant alleged that he was owed outstanding remuneration.
23. The Chamber next observed that the Claimant satisfactorily established, and it was in any
case undisputed, that a valid employment agreement, the Contract, as well as a separate
agreement for a non-relegation bonus, the Bonus Agreement, existed between the parties.
24. Thereafter, the Chamber noted that the parties disputed whether the Respondent provided
justification for failing to honor its financial obligation on time, as well as what
remuneration was still owed by the Respondent.
25. First, the Chamber observed that the Respondent failed to submit evidence of its purported
justifications for not fulfilling its financial obligations. In addition, the Chamber recalled the
well-established jurisprudence of the Football Tribunal which establishes that financial
difficulties per se do not constitute a valid reason to justify the failure to fulfil contractual
obligations. Therefore, the Chamber determined that it needed not analyse further
whether the Respondent’s reasons for failing to pay any of the outstanding remuneration
in fact provide a basis for deviating from the principle of pacta sunt servanda.
26. The Chamber’s task therefore was to determine which, if any, remuneration claimed by the
Claimant was in fact owed under the Contract and Bonus Agreement.
27. The Chamber recalled that the Contract provided for the following salaries which were
noted as being outstanding by the Claimant:
-
EUR 75,000 due on 30 April 2024;
EUR 75,000 due on 31 May 2024.
28. Next, the Chamber recalled that the above amounts went undisputed. Due to not bearing
any additional contingency for payment, and apparently falling due on the dates claimed,
the Chamber concluded that the above amounts should be awarded as outstanding
remuneration to the Claimant as requested, pursuant to the principle of pacta sunt servanda.
29. On the other hand, with respect to the additional contingent payments, the Chamber
observed that the Claimant claimed an entitlement to EUR 10,000 constituting the other half
of a partially paid match bonus and a TRY 1,000,000 bonus for keeping the Respondent Club
in the Turkish Super League, in support of which the Claimant submitted an undated
WhatsApp communication and the Bonus Agreement, respectively.
30. The Chamber recalled that the WhatsApp message did not include, nor did the Claimant
provide, the sender’s title, and/or in what capacity he represented the Club. Similarly, the
individual was not listed as a Respondent Club official in TMS.
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REF. FPSD-15201
31. Moreover, the Chamber noted that, the message was inconclusive as to what financial
obligation the Respondent owed to the Claimant under the Contract or otherwise.
32. Hence, the Chamber concluded that it could not be deduced that in the correspondence,
the Club has confirmed any portion of the Claimant’s alleged payment obligation.
33. With regard to the TRY 1,000,000 bonus claimed pursuant to the Bonus Agreement, the
Chamber observed that the Claimant provided no evidence for the events giving rise to the
bonus payment, such as the Club’s ranking at the end of the 2023/2024 season or its
position going into the following season.
34. Accordingly, and notwithstanding the Respondent’s failure to establish any arguments or
evidence to counter the Claimant’s position, the Chamber concluded that the Claimant
failed to discharge the requisite burden of proof pursuant to art. 13 par. 5 of the Procedural
Rules, to show that the alleged contingent payments were in fact triggered and owed to the
Claimant.
35. Finally, the Chamber recalled that the Claimant included in his request for relief that he
should be awarded EUR 15,000 as compensation for breach of contract, corresponding to
10% of the total overdue salary payments. However, the Chamber further noted that the
Claimant provided no legal argument in support thereof, nor did he allege any termination
of the Contract, citing only as his claim’s legal basis art. 12bis overdue payables. The
Chamber observed that art. 17 of the Regulations does not apply in the present matter and
therefore concluded that no such additional compensation should be awarded.
ii. Consequences
36. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
37. The Chamber determined that the outstanding remuneration under the Contract coupled
with the specific requests for relief of the player, totalled EUR 150,000, and was comprised
of the following guaranteed payments:
-
EUR 75,000 due on 30 April 2024 (salary);
EUR 75,000 due on 30 May 2024 (salary).
38. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from the day following each respective due date
until the date of effective payment.
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REF. FPSD-15201
iii. Art. 12bis of the Regulations
39. Having established the above, 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.
40. To this end, the Chamber confirmed that the player put the club in default of payment of
the amounts sought, of which EUR 115,750 had fallen due more than 30 days before, and
granted the club a 10-day deadline to cure such breach of contract.
41. 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.
42. 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 and bearing in mind
that the Club is a repeat offender, the Chamber decided to impose a fine on the club in
accordance with art. 12bis par. 4 lit. c) of the Regulations.
43. Furthermore, the Chamber regarded a fine amounting to USD 35,000 as appropriate and
hence decided to impose said fine on the Club.
44. 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.
iv. Compliance with monetary decisions
45. 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.
46. 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.
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REF. FPSD-15201
47. 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.
48. 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.
49. 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.
d. Costs
50. 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.
51. 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.
52. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-15201
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jamiro Gregory Monteiro Alvarenga, is partially accepted.
2.
The Respondent, Gaziantep Futbol Kulübü A.Ş., must pay to the Claimant the following
amount(s):
- EUR 75,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2024 until
the date of effective payment;
- EUR 75,000 as outstanding remuneration plus 5% interest p.a. as from 1 June 2024 until
the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A fine in the amount of USD 35,000 is 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-15201:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230
IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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.
7.
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.
pg. 12
REF. FPSD-15201
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 13
REF. FPSD-15201
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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396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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