DRC Overdue Payables
Texto da decisão
REF FPSD-6899
Decision of the
Dispute Resolution Chamber
passed on 24 November 2022
regarding an employment-related dispute concerning the player Juan
Francisco Moreno Fuertes
COMPOSITION:
DE WEGER Frans (The Netherlands), Chairperson
LUKASEK Peter (Slovakia), member
PERLEMUTER Jerome (France), member
CLAIMANT:
Juan Francisco Moreno Fuertes, Spain
Represented by ESQUAD Abogados
RESPONDENT:
Alanyaspor, Türkiye
Represented by Sami Dinc
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REF FPSD-6899
I. Facts of the case
1.
On 30 July 2019, the Spanish player, Juan Francisco Moreno Fuertes (hereinafter the player
or the Claimant) and the Turkish club, Alanyaspor (hereinafter: the club or the Respondent)
concluded an employment contract (hereinafter: the contract) valid for two seasons, i.e.,
until 31 May 2021, with an option for extension for one additional season.
2.
Under clause 7 of the contract, said extension would take place in the event that the
Claimant played in more than 70% of the “official league matches” of the first team of the
club during the 2020/2021 season.
3.
In accordance with the information displayed on the Transfer Matching System (TMS),
each season in Türkiye starts on 1 August each year and finishes on 31 May the following
year.
4.
Under clause 6.1 of the contract, should the extension take place, the club undertook to
pay the player:
a. 10 monthly salaries of EUR 60,000 net each, from August 2021 to May 2022, on the
“last day of the relevant months and before June 30th, 2022, in any case”; plus,
b. 2 additional guaranteed payments of EUR 30,000 net each, payable respectively on
30 September 2021 and 28 February 2022; and
c. EUR 10,000 net as expenses for housing, car and flight tickets, payable by “the end of
the season” 2021/2022.
5.
On 4 July 2022, the player put the club in default and requested payment of EUR 220,000
net, broken down as follows, setting a 10 days’ time limit in order to remedy the default:
a. EUR 180,000 net as salaries of March, April and May 2022;
b. EUR 30,000 net as 2nd instalment of guaranteed payment; and
c. EUR 10,000 net as end-of-season allowance fee.
6.
On 2 August 2022, the player lodged a claim against the club in front of FIFA and
requested payment of EUR 220,000 net, broken down as follows:
a. EUR 180,000 net as salaries of March, April and May 2022
b. EUR 30,000 net as 2nd instalment of guaranteed payment; and
c. EUR 10,000 net as end-of-season allowance fee.
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7.
The player further requested 5% interest p.a. on the aforesaid amounts as from each due
dates until the date of effective payment, and that the club is sanctioned under art. 12bis
of the FIFA Regulations on the Status and Transfer of Players (RSTP).
8.
In its reply, the club argued that it paid EUR 510,000 plus TRY 463,271,90 to the player
during the season 2021/2022, therefore it allegedly “completed its financial obligations
towards the player”. The club filed several unspecified transfer receipts in support of its
position.
9.
In his rejoinder, the player pointed out that the club made two payments after the claim
had been filed, namely EUR 60,000 on 12 August 2022 and EUR 10,000 on 9 September
2022, both of which he acknowledged receipt. Accordingly, he confirmed that the club still
owes him EUR 150,000 net. The player made the following allocation of amounts due and
already paid:
PAYMENT CONCEPT
AMOUNT
DUE DATE
Monthly Salary – August 2021 (Art. 6.1)
Monthly Salary – September 2021 (Art. 6.1)
Guarantee Payment – 1st Instalment (Art. 6.1)
Monthly Salary – October 2021 (Art. 6.1)
Monthly Salary – November 2021 (Art. 6.1)
Monthly Salary – December 2021 (Art. 6.1)
Monthly Salary – January 2022 (Art. 6.1)
Monthly Salary – February 2022 (Art. 6.1)
Guarantee Payment – 2nd Instalment (Art.
6.1)
* Monthly Salary – March 2022 (Art. 6.1)
Monthly Salary – April 2022 (Art. 6.1)
Monthly Salary – May 2022 (Art. 6.1)
* Additional Benefits – “Home and Car” (Art.
6.2)
OUTSTANDING BALANCE = €150,000.00 NET
€60,000.00 net
€60,000.00 net
€30,000.00 net
€60,000.00 net
€60,000.00 net
€60,000.00 net
€60,000.00 net
€60,000.00 net
€30,000.00 net
31/08/2021
30/09/2021
30/09/2021
31/10/2021
30/11/2021
31/12/2021
31/01/2022
28/02/2022
28/02/2022
DATE
OF
PAYMENT
17/09/2021
22/10/2021
23/02/2022
14/01/2022
10/02/2022
10/03/2022
08/04/2022
20/05/2022
OVERDUE
€60,000.00 net
€60,000.00 net
€60,000.00 net
€10,000.00 net
31/03/2022
30/04/2022
31/05/2022
30/06/2022
12/08/2022
OVERDUE
OVERDUE
09/09/2022
10. As to the amounts paid in Tukish Lira (TRY), the player argued that these do no refer to
the salaries but to bonuses paid throughout the season. The player highlighted that the
receipts do not contain any explanation as to their concept or reason for payment and
absolutely do not refer to the concepts sought by the Claimant.
11. Additionally, the player argued that the club implicitly recognized its debt towards him as
it argued to have paid EUR 510,000 in total while his remuneration for the 2021/2022
season amounted to EUR 660,000.
12. The amended requests for relief of the player were as follows:
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“a) To find the Respondent liable for breaching the financial terms and conditions of the
Employment Contract dated 30 July 2019, since the Respondent had not complied with the
payment of the Claimant´s salaries, on due time and in full compliance with the terms
and conditions agreed therein;
b) To condemn the Respondent to pay the Claimant the overdue salaries in the current final
amount of ONE HUNDRED FIFTY THOUSAND EUROS (€150.000,00) NET, corresponding to:
- The amount of THIRTY THOUSAND EUROS (€30,000.00) NET, as the Second Instalment of
the “Guarantee Payment” agreed in Article 6.1 of the Employment Contract, which should have
been paid by the Respondent on or before 28 February 2022;
- The amount of ONE HUNDRED TWENTY THOUSAND EUROS (€120,000.00) NET, as the
overdue monthly fixed remuneration under Article 6.1 of the Employment Contract, which
should have been paid by the Respondent as follows:
o
SIXTY THOUSAND EUROS (€60,000.00) NET, corresponding to the fixed salary of April
2022, on or before 30 April 2022; and,
o
SIXTY THOUSAND EUROS (€60,000.00) NET, corresponding to the fixed salary of May
2022, on or before 31 May 2022.
c) To condemn the Respondent to pay the Claimant the amount corresponding to FIVE PER
CENT (5%) interest p.a., as follows:
- Over the amount of EUR 60,000.00 net, corresponding to the Monthly Salary of March
2022, calculated as from 31 March 2022, until 12 August 2022, the amount of ONE THOUSAND
ONE HUNDRED AND NINE EUROS AND FIFTY-NINE CENTS (€1,109.00) net;
- Over the amount of EUR 10,000.00 net, corresponding to the additional benefits agreed
in Article 6.2 of the Employment Contract, calculated as from 30 June 2022 until 9
September 2022, the amount of NINETY-EIGHT EUROS AND SIXTY-THREE CENTS (€98.63) net;
- Over the amount of EUR 60,000.00 net, corresponding to the Monthly Salary of April
2022, which is still overdue, calculated as from 30 April 2022, until the effective date of
payment;
- Over the amount of EUR 60,000.00 net, corresponding to the Monthly Salary of May
2022, which is still overdue, calculated as from 31 May 2022, until the effective date of
payment;
- Over the amount of EUR 30,000.00 net, corresponding to the Second Instalment of
the Guarantee Salary agreed in Article 6.1 of the Employment Contract, which is still
overdue, calculated as from 28 February 2022, until the effective date of payment;
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d) To impose on the Respondent a ban from registering any new players, either nationally
or internationally, pursuant to Article 12bis FIFA RSTP, as set forth in the Claimant´s initial
claim or any other sanction deemed appropriate by the FIFA DRC.
e) To impose on the Respondent a ban from registering any new players, either nationally
or internationally, up until the due amount is paid to the Claimant, pursuant to Article 24 FIFA
RSTP.
f) To condemn the Respondent to pay any and all costs related to the present proceedings, if
any.”
13. In its final comments, the club filed a short explanation, reproduced inter alia as follows:
“2)
First of all we hereby wish to state that it is not possible to consider the Claimant's
allegations in regarding to the payments made with TL. As they were already presented with
our first reply letter. the Respondent made several payments to the Claimant over TL currency.
3)
The payments made from Turkish Currency were made in connection with the
Statement of Turkish Republic Ministry of Treasury and Finance about Protecting the Value
Of the Turkish Lira dated 06.10.2018 and numbered 2008- 32134 (ANNEX-I).
4)
As your honorable chamber is also aware according to the implementation order of
regulations. internal mandatory regulations must be followed only if an international treaty
has been signed Turkish Republic and duly enters into force. Otherwise our Club is obliged to
follow the rules and regulations of Turkish Republic.
5)
As your honorable chamber is also aware, there is not international treaty signed
between Turkish Republic and FIFA in accordance with the subjected matter. As a general
principal of law, the Respondent is also obliged to follow the mandatory laws and regulations
of Turkish Republic.
6)
However, the Respondent showed its clear good faith by making many payments
over Euro currency to the Claimant during the employment relationship of the Parties. With
this way, the Respondent tried to find a balance between laws and regulations of Turkish
Republic and FIFA and presented its utmost good faith and well approach to the Claimant.
7)
By considering the above-mentioned facts and general principals of law, we hereby
kindly request from your honorable chamber to dismiss the allegations of the Claimant and
accept these subjected TL payments as properly paid.
8)
Lastly we hereby wish to state that, the relevant overdue payments were paid to the
Claimant way before the decision rendered by your honorable chamber. With this regard
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there is no way for the Claimant to request an interest for the already paid amounts under
the honesty and good faith principles of international law.
9)
For these reasons and abovementioned explanations we hereby ask FIFA DRC to
dismiss the claims of the Claimant. At this point we reserve all rights to provide the new
evidences.”
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II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 2 August 2022 and submitted
for decision on 24 November 2022. 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.
2.
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, par.
1, 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
Spanish player and a Turkish club.
3.
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 2 August 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
4.
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
5.
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
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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
6.
The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that this is a claim of a player against a club for overdue
payables.
7.
According to the player, the club failed to remit EUR 150,000 net, plus paid some amounts
late. He accordingly requests interest over these late payments.
8.
The club, for its part, argued that it performed payments under national law in the local
currency.
9.
It has to be noted that in the case at hand the club bore the burden of proving that it
indeed complied with the financial terms of the contract concluded between the parties.
Nonetheless, the evidence provided by the club (namely the transfer receipts) does not
prove the payment of the amounts claimed as outstanding by the player, for they are not
precisely indicated nor made in the currency agreed under the contract.
10. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber confirmed that the following amount and interest should be
granted to the player:
a. EUR 30,000 net plus 5% interest p.a. as from 1 March 2022 until the date of
effective payment;
b. EUR 60,000 net plus 5% interest p.a. as from 1 May 2022 until the date of
effective payment;
c. EUR 60,000 net plus 5% interest p.a. as from 1 June 2022 until the date of
effective payment;
d. EUR 1,207.63 as interest on late payment.
11. For the sake of completeness, the DRC highlighted that on the issue of interest, the player
requested the exact amount of EUR 1,109 + EUR 69.63. Per the DRC’s calculation, the
player would be entitled to a higher amount. However, the DRC recalled the principle ne
ultra petita and confirmed that the amount sought should be awarded.
ii. Art. 12bis of the Regulations
12. In continuation, 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
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without a prima facie contractual basis may be sanctioned in accordance with art. 12bis
par. 4 of the Regulations.
13. To this end, the Chamber confirmed that the player put the club in default of payment of
the amounts sought, which had fallen due more than 30 days before, and granted the
club a 10-day deadline to cure such breach of contract.
14. 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.
15. 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 this is the first offense by the club within the last two years, the Chamber
decided to impose a warning on the club in accordance with art. 12bis par. 4 lit. a) of the
Regulations.
16. 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.
iii. Compliance with monetary decisions
17. 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.
18. 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.
19. 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.
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20. 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.
21. 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
22. 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.
23. 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.
24. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Juan Francisco Moreno Fuertes, is partially accepted.
2.
The Respondent, Alanyaspor, has to pay to the Claimant, the following amount(s):
- EUR 30,000 net as outstanding remuneration plus 5% interest p.a. as from 1 March 2022
until the date of effective payment;
- EUR 60,000 net as outstanding remuneration plus 5% interest p.a. as from 1 May 2022
until the date of effective payment;
- EUR 60,000 net as outstanding remuneration plus 5% interest p.a. as from 1 June 2022
until the date of effective payment;
- EUR 1,207.63 net as interest on late payment.
3.
Any further claims of the Claimant are rejected.
4.
A warning is imposed on the Respondent.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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.
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