Labour Disputes
Texto da decisão
REF. FPSD-7668
Decision of the
Dispute Resolution Chamber
passed on 20 April 2023
regarding an employment-related dispute concerning
the player Danilo Moreno Asprilla
BY:
Omar Ongaro (Italy), Deputy Chairperson
José Luis Andrade (Portugal), member
Peter Lukasek (Slovakia), member
CLAIMANT:
Danilo Moreno Asprilla, Colombia
Represented by Ismail COSKUN
RESPONDENT:
Sakaryaspor, Türkiye
Represented by Ercan Sevdimbaş
pg. 2
REF. FPSD-7668
I. Facts of the case
1.
According to the Colombian player, Danilo Moreno Asprilla (hereinafter: Claimant or player),
on 20 June 2022, the Turkish club, Sakaryaspor (hereinafter: club or Respondent) made him
the following offer (hereinafter: offer):
2.
In support of his allegations, the player submitted extracts from different WhatsApp
conversations:
a) Between the club’s vice president Melih Dalkilic (MD) (with the number
+905334797297) and the agent, Mustapha Acikgöz (MA):
- 20 June 2022, 14:43 (MA): “I’ve found a great winger. He’s exciting. He will be very
effective in this league (TFF 1 Lig). Now he is signing the authorisation contract”.
- 20 June 2022, 14:44 (MD): “I’ll get it to the head coach right away”.
b) Between “a club employee” Aydin Yapicioglu, who sent the offer on 20 June 2022,
16:18, to the agent, Mustapha Acikgöz.
c) Between Mustapha Acikgöz, who sent the signed acceptance of the offer back to
the “club manager” Yasin Darcan.
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3.
On 21 June 2022, the club’s vice president, Melih Dalkilic sent a WhatsApp to the agent
Mustapha Acikgöz stating that the transfer would not take place.
4.
On 28 June 2022, the Claimant sent a letter to the club requesting an update about the
contractual situation and in case the Respondent would not want to proceed with the
transfer, the Claimant requested payment of the “penalty fee” in the amount of EUR 25,000
within 2 days.
5.
On 29 June 2022, the club replied to the player stating that it has “no knowledge or idea
about the stated official offer” and that the player should sent the offer mentioned in order
for the club to “examine it”.
6.
On 29 June 2022, the player sent a further letter to the club, reiterating his position and
enclosing the offer.
7.
On 1 July 2022, the club replied to the player stating:
8.
On 15 July 2022, the Claimant put the Respondent in default and requested payment of
EUR 25,000, corresponding to the “penal clause” within 10 days.
9.
According to information contained in the Transfer Matching System (TMS), the player was
under contract with the Israeli club, Hapoel Beer Sheva as of 2 August 2021 until 31 May
2022.
10. On 16 August 2022, the player signed a contract with the Israeli club Beitar Jerusalem valid
as of the date of signature until 31 May 2023, including a monthly salary of EUR 14,000
(payable in 10 instalments).
pg. 4
REF. FPSD-7668
II. Proceedings before FIFA
11. On 29 September 2022, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a. Position of the Claimant
12. In his claim, the player requested payment of EUR 25,000, as agreed upon in the offer, plus
5% interest p.a. as of 26 July 2022.
13. The Claimant argued that the offer was “valid” and that the player, after the club lost its
interest, is entitled to the amount of EUR 25,000, as established in the offer.
14. The player further submitted documentation regarding a different player (Jan Malepa),
engaged by the club in August 2022, which bears the signature of the club’s president,
Melih Dalkilic.
15. According to the player, it was the same club representative, Mr Yasin Darcan, who
provided the agent with the contract in this matter.
b. Position of the Respondent
16. In its reply, the club rejected the player’s claim.
17. The Respondent held that it had “no knowledge of the stated offer” and that it is not binding
for the club.
18. Moreover, the club pointed out that the document in question “has not been signed by the
club’s representative Mr. Melih Dalkilic” and that it was “forged”.
19. In support of its arguments, the club submitted a document with the actual signature of
the vice president (3 times), which (according to the club) are different to the one on the
offer:
20. The club also held that the number presented by the Claimant in relation to the WhatsApp
conversation, does not belong to Melih Dalkilic. His number is +905412115434 (plus 3 other
numbers different to the one alleged by the Claimant) and not +905334797297 as
presented.
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REF. FPSD-7668
21. Furthermore, the club brought forward that the agent, Mr Mustafa Acikgöz, had “no
mandate” for any transfer negotiations for the club.
22. Finally, the club argued that the other club representatives mentioned by the Claimant, Mr
Yasin Darcan and Aydin Yapicioglu, have no “authority to make decisions” on behalf of the
club.
c. Replica of the Claimant
23. In his replica, the Claimant reiterated his position.
24. The player pointed out that the arguments of the Respondents are contradicting. On one
hand, the club argued that the offer was forged, but then the Respondent does not dispute
that the employees Yasin Darcan and Aydin Yapicioglu were involved, although allegedly
without any authorisation.
25. Also, the Claimant held that the club did not initiate any criminal proceedings although it
argued that the signature of the vice president was forged.
26. Further, the player maintained that the employees involved, Yasin Darcan and Aydin
Yapicioglu, remained unpunished and are still employed by the club.
27. The player further argued that in the transfer of a different player (Jan Nalepa), the vice
president instructed the employee Aydin Yapicioglu to send an offer for the player.
28. On account of the above, the player brought forward that said process was usual in the
club and that said employee had the power to act on behalf of the club.
29. As to the signature of the vice president on the offer, the player rejected the argument of
forgery and argued that signatures submitted by the Respondent look the same as the one
on the offer.
30. The player held that the invoice regarding the phone numbers of the vice president
submitted by the club does not proof that the number in contact with the player does not
belong to the vice president.
31. In this regard, the Claimant submitted a WhatsApp conversation between the alleged club’s
vice president Melih Dalkilic (with the number +905334797297) and the agent in connection
with the transfer of a different player (Jan Nalepa, currently playing for Sakaryaspor).
Therefore, the Claimant argued that said number must belong the vice president,
otherwise Jan Nalepa would not play for the Respondent.
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REF. FPSD-7668
d. Duplica of the Respondent
32. In its duplica, the Respondent reiterated its position and argued that the offer was not valid
as it was not signed by the vice president.
33. Further it pointed out that it was irrelevant who submitted an “unauthorized offer”, as the
offer was not valid (and “fake”) and therefore it is not relevant that the employees are still
with the club.
34. The club also stated that said offer was not found in the “official club records” and that the
club did not act contradictory, as it stated so from the beginning.
35. As to the arguments raised by the Claimant in connection with the transfer of Jan Nalepa,
the club pointed out that those circumstances were related to a different transfer and “do
not change the concrete evidence” in this dispute.
36. The club further held that it could still file a criminal complaint regarding the forged
signature.
37. Finally, the Respondent brought forward that all phone numbers of Mr Melih Dalkilic have
been presented and that the one claimed by the Claimant does not belong to him.
38. According to the club, the player’s agent “built this case” in order “to get something from the
club”.
pg. 7
REF. FPSD-7668
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
39. 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 29 September 2022 and
submitted for decision on 20 April 2023. Taking into account the wording of art. 34 of the
October 2022 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.
40. 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 (October 2022 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 player and a club.
41. 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 29 September 2022, the July 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
42. 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
43. 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.
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REF. FPSD-7668
i. Main legal discussion and considerations
44. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the validity of the alleged
offer.
45. In this context, the Chamber acknowledged that it its task was to detail if such offer was
valid, accepted and therefore legally binding and to decide on the consequences thereof.
46. The members of the DRC noted that according to the player, the offer of the club was
accepted and therefore a valid and binding employment contract concluded. Therefore,
the player requested payment of EUR 25,000 as “penalty”, which is established in the offer.
47. The Chamber also took note that the Respondent argued that the signature on the offer
was forged and that it could not be valid and that it consequently rejected the claim.
48. First of all, the DRC pointed out that it had to establish if the offer contains the essentialia
negotii and could be a valid employment contract, if accepted. Analysing the document in
question, the members of the Chamber established that the parties to the contract and
their role, the duration of the employment relationship and the remuneration payable by
the employer to the employee, were clearly stipulated in the offer.
49. Furthermore, the Chamber observed that it remained uncontested that the player
accepted the offer and sent it to a person employed by the club. Also, the DRC observed
that the offer was sent to the player’s agent by 2 employees of the club.
50. On account of the above, we can establish that the offer and its acceptance, could establish
a valid employment relationship.
51. Nevertheless, the club vehemently alleged that the signature of its vice president added to
the employment contract was forged.
52. In this respect, the DRC recalled that, as a general rule, FIFA’s deciding bodies are not
competent to decide upon matters of criminal law, such as the one of alleged falsified
signatures of documents, and that such affairs fall into jurisdiction of the competent
national criminal authority.
53. However, after a thorough analysis of the evidence provided by the parties, the Chamber
concluded that, in spite of the technical remarks made by the club, there was no substantial
evidence that the consent given by the club was forged. Moreover, it has to be pointed out
that the club did not dispute that its employees sent the offer and received the acceptance.
The club only argued that those people were not empowered to do so.
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REF. FPSD-7668
54. However, the DRC wished to emphasize that the player could not know who was
empowered to send such offers and that he had enough reason to conclude that those
people were in fact empowered to do so.
55. On account of the above, the Chamber established that a valid and binding employment
contract was concluded, which was undisputedly breached by the club.
ii. Consequences
56. As to the compensation due to the player (and taking into account the player’s claim), the
DRC noted that the offer contained a clause establishing that “if the sides give up this
agreement, 25,000 euros will be paid”.
57. After analysing the content of the aforementioned clause, the Chamber concluded that it
fulfilled the criteria of reciprocity and proportionality, in line with the longstanding
jurisprudence of the Football Tribunal, and therefore was to be applied in the case at hand
to determine the amount of compensation payable by the Respondent to the Claimant.
58. Consequently, the Chamber decided that the amount of EUR 25,000, as per the clause
agreed between the parties in the contract, is due to the player by the club.
59. Lastly, 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 on said
compensation at the rate of 5% p.a. as of 26 July 2022 until the date of effective payment.
iii. Compliance with monetary decisions
60. 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.
61. 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-7668
62. 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.
63. 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.
64. 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
65. 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.
66. 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.
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REF. FPSD-7668
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Danilo Moreno Asprilla, is accepted.
2.
The Respondent, Sakaryaspor, must pay to the Claimant the following amount(s):
- EUR 25,000 plus 5% interest p.a. as from 26 July 2022 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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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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