DRC Overdue Payables
Texto da decisão
REF. FPSD-8763
Decision of the
Dispute Resolution Chamber
passed on 12 April 2023
regarding an employment-related dispute concerning
the player Michael Pereira
BY:
Angela Collins (Australia)
Single Judge of the Dispute Resolution Chamber
CLAIMANT:
Michael Pereira, France
Represented by Mr Patryk Radovac
RESPONDENT:
Kocaelispor Kulübü Dernegi, Türkiye
pg. 2
REF. FPSD-8763
I. Facts of the case
1. On 30 June 2021, the French player Michael Pereira (hereinafter: the Claimant) and the
Turkish club Kocaelispor Kulübü Dernegi (hereinafter: the Respondent) concluded an
employment contract valid as from the date of signature until 31 May 2022.
2. In accordance with said contract, the Claimant was entitled to the national minimum wage
as remuneration.
3. On the same day, the parties allegedly signed an “Amendment Agreement” (hereinafter the
Agreement), in accordance with which the terms of the Contract were rearranged.
4. In accordance with the Agreement, the Respondent allegedly undertook to pay the Claimant
a monthly net salary of EUR 10,000, payable on the last day of each respective month
between September 2021 and June 2022, as well as a signature bonus of EUR 30,000 paid “in
cash against bank receipt signed by the player, at the specific request of the latter”.
5. Furthermore, in accordance with clause 3.3 of the Agreement, the Respondent allegedly
undertook to pay the Claimant bonuses as follows:
“a) EUR 20,000 should the player be fielded in at least 30 official league games in the starting
line up during the regular season (excluding play-off games) within 60 days of the last official
game
b) maximum EUR 50,000 net, a per-match appearance fee of EUR 1,388.80:
- 100% of said fee if player is in starting line-up
- 75% of said fee if player is used as a substitute
- 50% of said fee if player is not used as a substitute, but is in the matchday squad
c) promotion to Turkish Süper Lig at the end of the season: EUR 20,000 within 60 days of the
last official game.“
6. On 26 August 2022, the Claimant put the Respondent in default of payment of EUR 82,497.60
net, granting a 15-day deadline for the latter to remedy the alleged breach.
pg. 3
REF. FPSD-8763
II. Proceedings before FIFA
1. On 28 December 2022, lodged a claim before FIFA for outstanding remuneration under the
employment contract signed with the club, and the relevant Agreement supplementing said
contract.
a. Position of the Claimant
2. The Claimant argued that the Respondent failed to pay four-and-a-half monthly salaries,
between February 2022 and June 2022, giving rise to a debt of EUR 45,000 net.
3. Furthermore, the Claimant argued that the Respondent failed to pay him the appearance
bonuses for a number of matches in which he played, equally pursuant to the Agreement, in
the total amount of EUR 37,497.60 net.
4. The Claimant provided extracts from the online platform transfermarkt.com, demonstrating
that he indeed played in the matches as claimed.
5. Furthermore, the Claimant provided bank statements indicating clearly that he had, on
numerous occasions, received payments in the amount of EUR 10,000 net from the
Respondent at the stipulated payment dates in the alleged Agreement.
6. The Claimant requested payment in total of EUR 82,497.60 net, as well as interest as from
the respective due dates of the overdue payments.
7. Lastly, the Claimant requested a fine and a transfer ban to be imposed on the Respondent.
b. Reply of the Respondent
OSITION OF THE RESPONDENT
8. In its reply, the Respondent contested the authenticity of the Agreement.
9. The Respondent asserted that the signature on the Agreement was falsified and that the
Claimant has not met the burden of proving that he is entitled to the amounts outlined
thereunder.
10. Furthermore, the Respondent stated that the Claimant has provided insufficient evidence of
being entitled to any potential appearance bonuses.
c. Replica of the Claimant
11. The Claimant submitted the original version of the Agreement as requested by the FIFA
administration.
pg. 4
REF. FPSD-8763
12. The Claimant, therefore, argued that the burden of proving that the Agreement was
authentic had been discharged.
13. Outside of this, the Claimant reiterated all requests.
d. Duplica of the Respondent
14. Despite having been invited to do so, the Respondent provided no further comments.
pg. 5
REF. FPSD-8763
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether she was competent to deal with the case at hand. In
this respect, she took note that the present matter was presented to FIFA on
28 December 2022 and submitted for decision on 12 April 2023. 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.
2.
Subsequently, the Single Judge 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 (March 2023 edition), she is competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a player from France and a club from Turkey.
3.
Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (March 2023 edition),
and considering that the present claim was lodged on 28 December 2022, the October 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 Single Judge 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, she 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 Single Judge
entered into the merits of the dispute. In this respect, she started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
the Single Judge 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.
pg. 6
REF. FPSD-8763
i. Main legal discussion and considerations
6.
The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the authenticity of the
Agreement and the resulting obligation to pay certain financial instalments thereunder, as
well as the Contract.
7.
In this context, the Single Judge acknowledged that her task was to determine whether he
Agreement was indeed authentic, valid and binding, and whether the Respondent had, with
a valid reason, if at all, defaulted on the due payments.
8.
The Single Judge began to acknowledge that the Claimant asserted not having been paid a
total sum of EUR 82,497.60 net, which allegedly corresponded to four-and-a-half monthly
salaries between February 2022 and June 2022, in the amount of EUR 45,000 net, as well
as bonuses under the Agreement corresponding to total appearances, in the amount of
EUR 37,497.60 net.
9.
The Single Judge equally took note of the Respondent’s line of argument that the
Agreement was falsified, thereby not rendering the amounts in question due. Moreover,
the Respondent had argued that the Claimant failed to provide any evidence as to the
entitlement to any conditional amounts.
10. Before entering the analysis of the respective arguments, the Single Judge referred to
art. 13 par. 5 of the Procedural Rules, according to which a party bears the burden of
proving the veracity of facts it intends to rely upon.
11. Having established the above, the Single Judge wished to point out that the Claimant had
not only provided the original version of the Agreement upon request of the FIFA
Administration, but also copies of its bank extracts which corroborate previous payments
made by the Respondent under the Agreement.
12. On the other hand, the Single Judge also raised that the Respondent failed to support its
allegation of forgery with any evidence.
13. Therefore, the Single Judge firstly established that the Agreement should be considered
authentic, and consequently valid and binding.
14. Moreover, the Single Judge addressed the issue of the Claimant’s entitlement to conditional
amounts. In this respect, the former wished to point out that ample evidence had been
submitted to demonstrate that the Claimant had performed the due requirements to
become entitled to the requested amounts – i.e. participate in matches as required by
clause 3.3 b) of the Agreement.
pg. 7
REF. FPSD-8763
15. With this in mind, the Single Judge established that the Claimant had been entitled to
receive the conditional amounts as claimed under the Agreement.
16. Based on the above, the Single Judge went on to consider whether or not the amounts in
question had, indeed, remained unpaid, and if so, whether or not the Respondent had a
valid justification for defaulting thereon.
17. In this respect, the Single Judge observed that, beyond the contestation of the authenticity
of the Agreement and the entitlement to the conditional amounts, the Respondent had not
offered any argumentation as to whether the amounts either under the Contract or the
Agreement remained unpaid.
18. It is to be noted that the Respondent bore the burden of proving that it had complied with
the obligations contractually agreed upon with the Claimant, in accordance with art. 13
par. 5 of the Procedural Rules.
19. Therefore in light of the fact that the non-payment remained uncontested and with no
justification to this end, the Single Judge concluded that the Respondent defaulted
unlawfully on the due amounts.
20. Consequently, the Single Judge decided, in accordance with the general legal principle of
pacta sunt servanda, that the Claimant shall be entitled to receive outstanding
remuneration of EUR 82,497.60 net.
21. Furthermore, the Claimant shall also receive annual interest thereupon at the rate of 5%,
as from the following dates:
- 5% interest p.a. over the amount of EUR 22,915.20 of as from 2 January 2022 until the date
of effective payment;
- 5% interest p.a. over the amount of EUR 5,000 as from 1 March 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 10,000 as from 1 April 2022 until the date of
effective payment;
- 5%interest p.a. over the amount of EUR 10,000 as from 1 May 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 10,000 as from 1 June 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 14,582.40 as from 2 June 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 10,000 as from 1 July 2022 until the date of
effective payment.
pg. 8
REF. FPSD-8763
ii. Application of Art. 12bis RSTP
22. In continuation, the Single Judge 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.
23. To this end, the Single Judge confirmed that the Claimant put the Respondent 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.
24. Accordingly, the Single Judge confirmed that the Respondent had delayed a due payment
without a prima facia contractual basis. It followed that the criteria enshrined in art. 12bis
of the Regulations were met in the case at hand.
25. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations
she has competence to impose sanctions on the Respondent. On account of the above and
bearing in mind that this is the first offense by the club within the last two years, the Single
Judge decided to impose a warning on the Respondent in accordance with art. 12bis par. 4
lit. a) of the Regulations.
26. In this connection, the Single Judge 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
27. Finally, taking into account the applicable Regulations, the Single Judge 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.
28. 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.
29. 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
pg. 9
REF. FPSD-8763
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.
30. 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.
31. 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
32. The Single Judge 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
33. Likewise, and for the sake of completeness, the Single Judge recalled the contents of
art. 25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall
be awarded in these proceedings.
34. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 10
REF. FPSD-8763
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Michael Pereira, is partially accepted.
2.
The Respondent, Kocaelispor Kulübü Dernegi, must pay to the Claimant the following
amount(s):
- EUR 82,497.60 net as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount of EUR 22,915.20 as from 2 January 2022 until the date
of effective payment;
- 5% interest p.a. over the amount of EUR 5,000 as from 1 March 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 10,000 as from 1 April 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 10,000 as from 1 May 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 10,000 as from 1 June 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 14,582.40 as from 2 June 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 10,000 as from 1 July 2022 until the date of
effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A warning shall be imposed on the Respondent (cf. art. 12 bis RSTP).
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.
pg. 11
REF. FPSD-8763
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
pg. 12
REF. FPSD-8763
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
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