DRC Overdue Payables
Texto da decisão
REF FPSD-2698
Decision of the
Dispute Resolution Chamber
passed on 25 November 2021
regarding an employment-related dispute concerning the player
Mikkel Morgenstar Palssonn Diskerud
BY:
Frans de Weger (The Netherlands), Chairperson
Mario Flores Chemor (Mexico), member
Stefano Sartori (Italy), member
CLAIMANT:
Mikkel Morgenstar Palssonn Diskerud, Norway
Represented by Anil Dincer
RESPONDENT:
Club Denizlispor Kulubu, Turkey
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REF FPSD-2698
I.
Facts of the case
1. On 20 January 2021, the Norwegian player Mikkel Morgenstar Palssonn Diskerud (hereinafter
the Claimant or the player) and the Turkish club Denizlispor Kulubu (hereinafter the
Respondent or the club) concluded an employment agreement (hereinafter the Employment
Agreement), valid as of 20 January 2021 until 31 May 2021.
2.
In Clause 3 of the Employment Agreement, the Claimant and Respondent (jointly referred to
as the Parties) agreed upon, inter alia, the following financial terms for the season 2020/2021:
-
EUR 72,500 due on 20 January 2021;
EUR 43,750 due on 28 February 2021;
EUR 43,750 due on 31 March 2021;
EUR 43,750 due on 30 April 2021;
EUR 43,750 due on 31 May 2021.
3.
On 17 May 2021, the Claimant put the Respondent in default for the payment of the
outstanding salaries in the total amount of EUR 153,750, corresponding to the remaining
amount of EUR 22,500 for the month of January 2021 and three full salaries for the months
of February until April 2021 in the amount of EUR 43,750 each. The Claimant provided the
Respondent with a 10 days’ deadline to remedy its default, however to no avail.
4.
In the meantime, the payment of the May 2021 salary also became due.
II. Proceedings before FIFA
5.
On 2 June 2021, 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
6.
According to the Claimant, the salaries for the period between January and May 2021
remained outstanding.
7.
In accordance with the legal principle pacta sunt servanda, the Claimant requested the
payment of the said salaries in the amount of EUR 197,500, plus 5% interest of p.a. from the
respective due dates until the date of the effective payment.
8.
The request for relief of the Claimant was the following:
i. EUR 197,500 for the remaining overdue payables and 5% interest p.a. which should
apply as follows:
-
EUR 22,500 as of 20 January 2021;
EUR 43,750 as of 28 February 2021;
EUR 43,750 as of 31 March 2021;
EUR 43,750 as of 30 April 2021;
EUR 43,750 as of 31 May 2021.
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b. Position of the Respondent
9.
The Respondent rejected the claim of the Claimant, arguing that it made all respective salary
payments.
10.
In its support, the Respondent provided two proofs of payment: i) proof of payment of
EUR 50,000 made on 20 January 2021; ii) proof of payment of Turkish Lira (TRY) 40,000
(approx. EUR 3,561) made on 5 February 2021.
c. Comments of the Claimant
11.
The Claimant commented that the payment of EUR 50,000 was never disputed and that it
was credited as part of January 2021 salary.
12.
With regard to the payment of TRY 40,000, the Claimant argued that it is not connected to
the salary payments as the proof of payment clearly indicates that the reason for payment is
“Payment of Göztepe Win Premium to Diskerud”, i.e. “payment for the match Göztepe” and
therefore “unrelated with the claim in this legal case”.
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 1 June 2021 and submitted for decision on
25 November 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. a 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 Norwegian 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 01 June 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
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b. Burden of proof
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 that the player lodged the claim at hand against the club seeking payment of
the balance of his remuneration.
19.
On the other hand, the DRC was also mindful of the club’s position according to which it
complied with all the financial duties under the employment contract.
20.
Having the above in mind, the members of the Chamber recalled the content of art. 13
par. 5 of the Procedural Rules and turned their attention to the documentation on file. In
doing so, the DRC acknowledged that the club did not advance any convincing evidence
capable of rebutting the player’s allegations as to the outstanding remuneration.
21.
In particular, the Chamber observed that the club did only provide evidence of a payment,
unrelated to the outstanding salaries that were claimed in the current dispute.
22.
In view of the foregoing and in line with the general legal principle of pacta sunt servanda,
the members of the Chamber unanimously decided that the player should be entitled to
the outstanding remuneration sought.
23.
Furthermore, taking into consideration the player’s request as well as the constant practice
of the Football Tribunal in this regard, the DRC decided to award the player interest at the
rate of 5% p.a. on the outstanding amount as follows:
-
on EUR 22,500 as from 21 January 2021;
on EUR 43,750 as from 1 March 2021;
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on EUR 43,750 as from 1 April 2021;
on EUR 43,750 as from 1 May 2021;
on EUR 43,750 as from 1 June 2021.
ii. Art. 12bis of the Regulations
24.
In continuation, the DRC 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.
25.
To this end, the DRC confirmed that the player put the club in default of payment of the
amounts sought, which had fallen due form more than 30 days, and granted the club with 10
days to cure such breach of contract.
26.
The DRC 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 repeated offender, the DRC decided to impose a fine on the Respondent in
accordance with art. 12bis par. 4 lit. c) of the Regulations.
27.
Furthermore, the DRC regarded a fine amounting to USD 15,000 as appropriate and hence
decided to impose said fine on the club.
28.
In this connection, the DRC 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.
iii. Compliance with monetary decisions
29.
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.
30.
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.
31.
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.
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32.
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.
33.
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
34.
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.
35.
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.
36.
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, Mikkel Morgenstar Palssonn Diskerud, is partially accepted.
2.
The Respondent, Denizlispor Kulubu, has to pay to the Claimant, the following amount:
- EUR 22,500 as outstanding remuneration plus 5% interest p.a. as from 21 January 2021 until
the date of effective payment;
- EUR 43,750 as outstanding remuneration plus 5% interest p.a. as from 1 March 2021 until the
date of effective payment;
- EUR 43,750 as outstanding remuneration plus 5% interest p.a. as from 1 April 2021 until the
date of effective payment;
- EUR 43,750 as outstanding remuneration plus 5% interest p.a. as from 1 May 2021 until the
date of effective payment;
- EUR 43,750 as outstanding remuneration plus 5% interest p.a. as from 1 June 2021 until the
date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
The Respondent is ordered to pay a fine in the amount of USD 15,000. The fine is to be paid within
30 days of notification of the present decision to FIFA to the following bank account with reference
to case nr. FPSD-2698:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230
IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
Please mention the applicable reference number
5.
Full payment of the amounts mentioned in point 2. (including all applicable interest) shall be made
to the bank account indicated in the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24bis of the Regulations on the Status and Transfer of Players (February 2021
edition), if full payment of the amounts mentioned in point 2. (including all applicable interest) is
not made within 45 days of notification of this decision, the following consequences shall apply:
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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.
24bis par. 7 and 8 and art. 24ter 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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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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