Acórdão do FIFA, processo Posmac_2022-08-05

Data

05/08/2022

Fonte

inside.fifa.com

DRC Overdue Payables

Texto da decisão

REF FPSD-6295

Decision of the
Dispute Resolution Chamber
passed on 5 August 2022

regarding an employment-related dispute concerning the player
Veaceslav Posmac

BY:
Daan de Jong (the Netherlands)

CLAIMANT:
Veaceslav Posmac, Moldova
Represented by Mr İsmet Bumin Kapulluoğlu

RESPONDENT:
Tuzlaspor AŞ, Türkiye
Represented by Mr Ercan Sevdimbaş

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I. Facts of the case
1.

On 26 July 2021, the Moldovan player Veaceslav Posmac (hereinafter: the Claimant), and
the Turkish club Tuzlaspor AŞ (hereinafter: the Respondent) signed an employment
contract (hereinafter: the Contract) valid as from the date of signature until 31 May 2022.

In accordance with art. 3 of the Contract, the Respondent undertook to pay to the
Claimant inter alia a monthly salary of EUR 10,000, by no later than the last day of each
respective month.

Furthermore, in accordance with the same provision, the Respondent undertook to pay
the Claimant a monthly car and rental allowance of EUR 1,000, by no later than the last
day of each respective month.

Additionally, in accordance with the same provision, the Respondent undertook to pay
the Claimant an appearance bonus of EUR 15,000, based on the latter playing in 28 league
matches for the Respondent during the term of the Contract.

Moreover, the provision stipulated the following condition in relation to the abovementioned payments:
“In the event that league competitions are suspended due to force majeure such as COVID-19
and similar epidemic diseases, earthquakes, natural disasters, in accordance with the
recommendations of FIFA, the payments due within the period of force majeure cannot be
requested by the player and debts related to the aforementioned terms will be paid one month
after the disappearance of the force majeure and resumption of competitions.”

By correspondence dated 10 May 2022, the Claimant put the Respondent in default of
payment of EUR 62,000, setting a time limit expiring on 25 May 2022 in order to remedy
the default, to no avail.

On 31 May 2022, the Contract expired naturally.

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II. Proceedings before FIFA
8.

On 8 June 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

According to the Claimant, the Respondent failed to make several payments under the
Contract, relating to salary instalments, car and rental allowance, and bonus entitlement
related to appearances made on behalf of the latter, detailed as follows:
-

EUR 1,000 rental allowance October 2021, payable by 31 October 2021;
EUR 1,000 rental allowance November 2021, payable by 30 November 2021;
EUR 1,000 rental allowance December 2021, payable by 31 December 2021;
EUR 10,000 monthly remuneration January 2022, payable by 31 January 2022;
EUR 1,000 rental allowance January 2022, payable by 31 January 2022;
EUR 10,000 monthly remuneration February 2022, payable by 28 February 2022;
EUR 1,000 rental allowance February 2022, payable by 28 February 2022;
EUR 10,000 monthly remuneration March 2022, payable by 31 March 2022;
EUR 1,000 rental allowance March 2022, payable by 31 March 2022;
EUR 15,000 appearance bonus, allegedly payable by 10 April 2022;
EUR 10,000 monthly remuneration April 2022, payable by 30 April 2022;
EUR 1,000 rental allowance April 2022, payable by 30 April 2022;
EUR 10,000 monthly remuneration May 2022, payable by 31 May 2022;
EUR 1,000 rental allowance May 2022, payable by 31 May 2022.

10. In total, the Claimant requested EUR 73,000 with interest of 5% p.a. applicable as from
the respective due dates of the allegedly unpaid instalments until the date of effective
payment.
b. Position of the Respondent
11. In its reply, the Respondent acknowledged the unpaid instalments, briefly justifying said
non-payment with the economic situation in Türkiye, as well as the depreciation of the
local currency, the Turkish Lira, against the Euro.

12. The Respondent, therefore, requested a reduction of the overdue amounts, and that any
legal and procedural costs, if applicable, shall be borne by the Claimant.

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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether he was competent to deal with the case at hand. In
this respect, he took note that the present matter was presented to FIFA on 8 June 2022
and submitted for decision on 5 August 2022. Taking into account the wording of art. 34
of the June 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.
14. 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 (July 2022 edition), he is competent to
deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Moldovan player and a Turkish club.
15. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (July 2022 edition),
and considering that the present claim was lodged on 8 June 2022, the March 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
16. 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, the Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, he 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 he will refer only to the
facts, arguments and documentary evidence, which he considered pertinent for the
assessment of the matter at hand.

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i. Main legal discussion and considerations
18. 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 disputed the lawfulness of the
non-payment of the following amounts requested by the Claimant:
-

19. In this respect, the Single Judge wished to point out that both parties expressly agreed as
to the fact that the amounts themselves, i.e., EUR 73,000 under the Contract, remained
unpaid.
20. In this context, the Single Judge acknowledged that his task was to determine, based on
the evidence presented by the parties, whether the Respondent had a valid justification
for not having complied with its financial obligations under the Contract.
21. In this respect, the Single Judge took note of the Respondent’s argumentation that the
salaries owed to the Claimant remained unpaid due to financial difficulties caused by the
poor economic situation in Türkiye, and, in particular, the depreciation of the Turkish Lira.
22. In this context, the Single Judge wished to point out that the Respondent failed to submit
any evidence corroborating either the assertion that the Turkish Lira had indeed
depreciated as claimed, or that the domestic league competition had been suspended as
a result of force majeure, as required by art. 3 of the Contract, thereby failing to meet the
burden of proving that the payments under the Contract could be challenged.
23. Consequently, the Single Judge concluded that, as no situation of force majeure could be
established in the present matter, the Respondent has to comply with the contractually
agreed payments as stipulated per the Contract.

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24. In view of the foregoing, and bearing in mind the basic legal principle of pacta sunt
servanda, which in essence means that agreements must be respected by the parties in
good faith, the Respondent is held liable to pay the Claimant the outstanding amounts
deriving from the Contract concluded between the parties, namely EUR 73,000.
ii. Consequences
25. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
26. In this respect, the Single Judge recalled that the amount claimed by the Claimant, i.e.,
EUR 73,000, was confirmed by the Respondent as having remained unpaid.
27. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Single Judge decided that the Respondent is liable to pay the Claimant the
amounts claimed as outstanding under the Contract, namely EUR 73,000, as detailed
above.
28. In addition, taking into account the Claimant’s request as well as the constant practice of
the Single Judge 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 following dates:
-

On the amount of EUR 1,000, 5% p.a. as from 1 November 2021 until the date of
effective payment;
On the amount of EUR 1,000, 5% p.a. as from 1 December 2021 until the date of
effective payment;
On the amount of EUR 1,000, 5% p.a. as from 1 January 2022 until the date of
effective payment;
On the amount of EUR 11,000, 5% p.a. as from 1 February 2022 until the date of
effective payment;
On the amount of EUR 11,000, 5% p.a. as from 1 March 2022 until the date of
effective payment;
On the amount of EUR 1,0100, 5% p.a. as from 1 April 2022 until the date of
effective payment;
On the amount of EUR 15,000, 5% p.a. as from 16 April 2022 until the date of
effective payment;
On the amount of EUR 11,000, 5% p.a. as from 1 May 2022 until the date of
effective payment;
On the amount of EUR 11,000, 5% p.a. as from 1 June 2022 until the date of
effective payment.

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iii. Art. 12bis of the Regulations
29. 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 basis may be sanctioned in accordance with art. 12bis par. 4 of the
Regulations.
30. To this end, the Single Judge confirmed that the Claimant put the Respondent in default
of payment of the amounts sought on the date of 10 May 2022, and that, of those
amounts, only EUR 36,000 had been overdue for more than 30 days. Moreover, the Single
Judge confirmed that the Claimant granted the Respondent a 15-day deadline to cure
such breach.
31. Accordingly, it was established that the Respondent had delayed a due payment without
a prima facie contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations were partially met in the case at hand.
32. The Single Judge further established that, by virtue of art. 12bis par. 4 of the Regulations,
he had the competence to impose sanctions on the Respondent. On account of the above
and bearing in mind that this was the 2nd offence committed by the Respondent within
the last two years (1st offence: FPSD-3676, notified to the parties on 9 November 2021),
the Single Judge decided to impose a reprimand in accordance with art. 12bis par. 4 lit. b)
of the Regulations.
33. In this connection, the Single Judge wished to highlight 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
34. 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 his 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.
35. In this regard, the Single Judge 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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36. Therefore, bearing in mind the above, the Single Judge 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.
37. 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.
38. The Single Judge 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
39. 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, he decided that no procedural costs were to be
imposed on the parties.
40. 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.
41. Lastly, the Single Judge 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, Veaceslav Posmac, is partially accepted.

The Respondent, Tuzlaspor AŞ, has to pay to the Claimant the following amount(s):
- EUR 1,000 as outstanding remuneration plus 5% interest p.a. as from 1 November 2021
until the date of effective payment;
- EUR 1,000 as outstanding remuneration plus 5% interest p.a. as from 1 December 2021
until the date of effective payment;
- EUR 1,000 as outstanding remuneration plus 5% interest p.a. as from 1 January 2022
until the date of effective payment;
- EUR 11,000 as outstanding remuneration plus 5% interest p.a. as from 1 February 2022
until the date of effective payment;
- EUR 11,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 2022
until the date of effective payment;
- EUR 11,000 as outstanding remuneration plus 5% interest p.a. as from 1 April 2022 until
the date of effective payment;
- EUR 15,000 as outstanding remuneration plus 5% interest p.a. as from 16 April 2022
until the date of effective payment;
- EUR 11,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2022 until
the date of effective payment;
- EUR 11,000 as outstanding remuneration plus 5% interest p.a. as from 1 June 2022 until
the date of effective payment.

▪

Any further claims of the Claimant are rejected.

A reprimand shall be imposed on the Respondent.

Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.

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 the ban
shall be of 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.

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7. The consequences shall only be enforced at the request of the Claimant in accordance
with article 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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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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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