DRC Overdue Payables
Texto da decisão
REF FPSD-3676
Decision of the
Dispute Resolution Chamber
passed on 09 November 2021
regarding an employment-related dispute concerning the player Matej
Pucko
BY:
Philippe Diallo, France
CLAIMANT:
Matej Pucko, Slovenia
Represented by Stefanovic Dejan
RESPONDENT:
Tuzlaspor, Turkey
Represented by Ercan Sevdimbas
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REF FPSD-3676
I.
Facts of the case
1.
On 11 September 2020, the Slovenian player, Mr Matej Pucko (hereinafter: the player or the
Claimant) and the Turkish club, Tuzlaspor (hereinafter: the club or the Respondent) concluded
a federative contract valid as from 11 September 2020 and 31 May 2021 (hereinafter: the
federative contract).
2.
In accordance with the federative contract, the club inter alia undertook to pay the player a
fixed remuneration as defined in the supplementary employment contract also signed
between the same parties for the same period (hereinafter: the employment contract).
3.
Pursuant to clause 6.1 of the employment contract, the player would be entitled to a total
amount of EUR 165,000 for the 2021/2021 season, payable as follows:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
EUR 50,000 in cash at the date of signature;
EUR 11,500 on 30 September 2020;
EUR 11,500 on 31 October 2020;
EUR 11,500 on 30 November 2020;
EUR 11,500 on 31 December 2020;
EUR 11,500 on 31 January 2021;
EUR 11,500 on 28 February 2021;
EUR 11,500 on 31 March 2021;
EUR 11,500 on 30 April 2021;
EUR 11,500 on 31 May 2021; and
EUR 11,500 on 30 June 2021.
4.
Furthermore, clause 6.5 of the employment contract established that the remuneration due
to the player should be paid net of any costs.
5.
On 26 August 2021, the player put the club in default and granted it with a 10 days’ deadline
in order to proceed the payment of EUR 55,000 net corresponding to “unpaid instalments
(monthly salaries) for months between January 2021 and May 2021”.
II. Proceedings before FIFA
6.
On 15 September 2021, the player filed the claim at hand before FIFA, requesting payment
of his outstanding remuneration totalling EUR 55,000 net plus 5% interest p.a. as from 1 July
2021 (i.e. one day after the expiry of the employment contract).
7.
In his claim, the player clarified that the club did only deliver part of his remuneration (EUR
109,500 out of EUR 165,000), and should be liable to comply with its financial duties.
Moreover, the player referred to art. 12bis of the FIFA Regulations on the Status and Transfer
of Players (RSTP) and requested sporting sanctions to be imposed on the club.
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8.
In its reply, the club held that it “has difficulty in financial position” because of, inter alia, the
economic and financial crisis in Turkey. In addition, the club also referred to COVID’s impacts
in its cash flow, as well as to the force majeure situation.
9.
In light of the above, the club requested the player’s claim to be dismissed or reduced.
Likewise, the club established that any procedural costs should be borne by the player.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
10. 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 15 September 2021
and submitted for decision on 9 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.
11. Subsequently, the members of the Singe 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 (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 Slovenian player and
a Turkish club.
12. 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 (August 2021 edition), and
considering that the present claim was lodged on 15 September 2021, the aforementioned
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
13. The Singe 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 Singe 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).
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c. Merits of the dispute
14. His competence and the applicable regulations having been established, the Singe Judge
entered into the merits of the dispute. In this respect, the Singe Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Singe 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.
i. Main legal discussion and considerations
15. The foregoing having been established, the Singe Judge moved to the substance of the matter
and took note that it remained undisputed between the parties that the amounts claimed by
the player were due by the club and remained outstanding.
16. On the other hand, the Single Judge also noted that the club referred to the Turkish political
and economic crisis, as well as to the COVID-19 pandemic in order to justify its default.
17. With due consideration of the above, the Single Judge firstly wished to outline that the
alleged financial difficulties faced by the club because of the political and economic crisis in
Turkey, and the consequential loss of value of the local currency, are not valid arguments in
view of well-established FIFA jurisprudence. Likewise, the Single Judge decided that said
difficulties are not considered a valid reason not to perform contractual obligations.
18. Consequently, the Single Judge was firm to determine that the club’s position in this regard
could not be upheld.
19. Having established the above, the Single Judge turned his attention to the club’s allegations
as to the COVID-19 pandemic. In doing so, the Single Judge highlighted that FIFA issued a
set of guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance and
recommendations to member associations and their stakeholders, to both mitigate the
consequences of disruptions caused by COVID-19 and ensure that any response is
harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an
additional document, referred to as FIFA COVID-19 FAQ, which provides clarifications on the
most relevant questions in connection with the regulatory consequences of the COVID-19
outbreak and identifies solutions for new regulatory matters.
20. To this extent, the Single Judge observed that the FIFA COVID FAQ, in its question no. 1,
establishes that the Bureau of the FIFA Council did not determine that the COVID-19 outbreak
was a force majeure situation in any specific country or territory, or that any specific
employment or transfer agreement was impacted by the concept of force majeure; rather, it
provides that whether or not a force majeure situation (or its equivalent) exists in the country
or territory is a matter of law and fact, which must be addressed on a case-by-case basis vis
à vis the relevant laws that are applicable to any specific employment or transfer agreement.
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21. Accordingly, the Single Judge stressed that the club did not file together with its reply any
documentation pertaining to the question of the COVID-19 pandemic and the concept of
force majeure. Therefore, the Single Judge determined that it failed to meet its burden of
proof in accordance with the aforementioned art. 13 par. 5 of the Procedural Rules.
22. On account of the abovementioned considerations and in line with the general legal principle
of pacta sunt servanda, the Single Judge established that the club shall be liable to pay the
player the outstanding remuneration sought, amounting to EUR 55,000 net.
23. Furthermore, taking into consideration the player’s request as well as the constant practice
of the Football Tribunal in this regard, the Single Judge decided to award the player interest
at the rate of 5% p.a. on the outstanding amount as from 1 July 2021 until the date of
effective payment.
ii. Art. 12bis of the Regulations
24. 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.
25. To this end, the Single Judge 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.
26. Accordingly, the Single Judge 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.
27. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the club. On account of the above, the Single Judge
decided to impose a warning on the club in accordance with art. 12bis par. 4 lit. a) of the
Regulations.
28. 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
29. 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
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party to pay the relevant amounts of outstanding remuneration and/or compensation in due
time.
30. 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.
31. Therefore, bearing in mind the above, the Single Judge decided that the club must pay the
full amount due (including all applicable interest) to the player within 45 days of notification
of the decision, failing which, at the request of the player, 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 player in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
32. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
33. 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
34. 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.
35. 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.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Matej Pucko, is accepted.
2.
The Respondent, Tuzlaspor, has to pay to the Claimant, the following amount:
- EUR 55,000 net as outstanding remuneration plus 5% interest p.a. as from 1 July 2021
until the date of effective payment.
3.
A warning is imposed on the Respondent.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
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.
6. 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.
7. 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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