DRC Overdue Payables
Texto da decisão
REF FPSD-5699
Decision of the
Dispute Resolution Chamber
passed on 22 June 2022
regarding an employment-related dispute concerning the player Enzo Pablo Roco Roco
BY:
Angela COLLINS (Australia), DRC Judge
CLAIMANT:
Enzo Pablo Roco Roco
RESPONDENT:
Fatih Karagumruk AS, Turkey
REF FPSD-5699
I Facts
1. On 8 September 2020, the player Enzo Pablo Roco Roco and Fatih Karagumruk AS concluded an
employment contract valid as from the date of signature until 31 May 2021.
2. According to art. 6 of the contract, the player was entitled to the following:
6.1- Financial Benefits In Favor Of The Player
For 2020/2021 Football Season:
400.000,00-Euro net (Four Hundred Thousand Euros)
The abovementioned amount is to be paid to the Player by the Club as the monthly salary in 10 (ten) equal
installments (10 x 40.000,00-Euro) between the period September 2020 – June 2021. The monthly salaries
are to be paid the last day of the relevant months.
6.2- Living costs of the Player:
The Club shall pay to the Player in the amount of 20.000,00-Euro (Twenty Thousand Euros) in total as
living cost in 10 (ten) equal installments (10 x 2.000,00-Euro) between the period September 2020 – June
2021. The living cost installments are to be paid the last day of the relevant months.
3. According to the player, on 18 February 2022, he had a conversation on “WhatsApp Messenger” with
the vice-president of the club, who acknowledged the following debt:
4. On 8 March 2022 the player, via his legal representative, sent a default notice and requested the
payment of EUR 100,000 net within 10 days.
5. On 6 April 2022, the player Enzo Pablo Roco Roco lodged a claim before FIFA for outstanding
remuneration and requested the payment of the outstanding amount of EUR 100,000, detailed as
follows:
EUR 80,000 net, corresponding to his salaries of May and June 2021 (i.e. 40,000*2);
EUR 20,000 net as living costs from September 2020 until June 2021 (i.e. 2,000*2).
6. The player requested the payment of 5% interest p.a. as from the due dates.
7. In its reply, the Respondent acknowledged a debt of EUR 77,621.42 and explained that it paid to the
player the amounts of EUR 320,000 and TRL (Turkish Lira) 167,438, “which corresponds to 18.142,41
Euro”.
8. However, the Respondent explained that the Professional Football Disciplinary Chamber of the
Turkish Football Federation imposed a series of fines to the player, as follows:
TRL (Turkish Lira) 13,000 “which corresponds to EUR 1,434.42” on 12.1.2021 due to his
“unsportmanslike behaviour during the Antalyaspor-Karagümrük match”;
TRL (Turkish Lira) 26,000 “which corresponds to EUR 2,581.23” on 14.5.2021 to his
“unsportmanslike behaviour during the Besiktas-Karagümrük match”;
9. The club presented the following receipts from “DenizBank”:
REF FPSD-5699
Amount:
TRL 10,000
TRL 14,820
EUR 40,000
TRL 12,000
EUR 40,000
EUR 40,000
TRL 8,500
TRL 25,000
EUR 40,000
TRL 9,550
EUR 40,000
TRL 11,550
TRL 14,700
TRL 17,668
EUR 40,000
TRL 19,250
TRL 14,700
TRL 14,700
EUR 40,000
TRL 9,700
EUR 40,000
TRL 2,000
Date
14.09.2020
30.09.2020
02.10.2020
02.11.2020
12.11.2020
04.12.2020
09.12.2020
23.12.2020
08.01.2021
28.01.2021
05.02.2021
05.02.2021
09.02.2021
01.03.2021
08.03.2021
31.03.2021
21.04.2022
08.04.2022
09.04.2021
27.04.2022
25.06.2021
13.01.2021
Reason
“Regarding the receivables of 2020 2021 Football Season”
“Regarding the receivables of 2020 2021 Football Season”
“Regarding the receivables of 2020 2021 Football Season”
“Regarding the receivables of 2020 2021 Football Season”
“Regarding the receivables of 2020 2021 Football Season”
“Regarding the receivables of 2020 2021 Football Season”
“Regarding the receivables of 2020 2021 Football Season”
“Regarding the receivables of 2020 2021 Football Season”
“Regarding the receivables of 2020 2021 Football Season”
“Regarding the receivables of 2020 2021 Football Season”
“Regarding the receivables of 2020 2021 Football Season”
“Regarding the receivables of 2020 2021 Football Season”
“Regarding the receivables of 2020 2021 Football Season”
“Regarding the receivables of 2020 2021 Football Season”
“Regarding the receivables of 2020 2021 Football Season”
“Regarding the receivables of 2020 2021 Football Season”
“Regarding the receivables of 2020 2021 Football Season”
“Regarding the receivables of 2020 2021 Football Season”
“Regarding the receivables of 2020 2021 Football Season”
“Regarding the receivables of 2020 2021 Football Season”
“Regarding the receivables of 2020 2021 Football Season”
“arbitration application fee against the decision of the Professional
football disciplinary board”.
10. The club argued that “in accordance with the general principle of law, the Respondent has right to
deduct the relevant imposed fines by the judicial bodies while the Respondent has already paid the
relevant amounts on behalf of the Player.”
11. The Respondent requested the payment of the “judicial costs and the attorneyship fees”.
12. In his replica, the Claimant underlined that the Respondent acknowledged its default to comply with
its main obligation to pay his salaries.
13. The Claimant underlined that the Respondent did not refer to his conversation via WhatsApp.
14. The player acknowledged that he received the amount of EUR 320,000.
15. However, the Claimant denied having received the amount of TRL 167,438 and wished to express
that, for the sake of clarity, he does not acknowledge having received any payment in Turkish
currency.
16. The Claimant underlined that the payments were agreed in any case in EUR.
17. The player considered that there is no contractual basis for any deduction due to disciplinary
measures, and stated that the club did not provide evidence that his right to being heard was
respected.
18. In sum, the player insisted to be paid with the amount of EUR 100,000 net.
REF FPSD-5699
19. In its duplica, the Respondent considered that, in any case, an exchange of messages via WhatsApp
shall not be deemed as valid evidence as they can be modified by anyone.
20. The Respondent insisted to deduct the fines imposes against the player, as it paid them on his
behalf.
REF FPSD-5699
II 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 it was competent to deal with the case at hand. In this respect, she took note
that the present matter was presented to FIFA on 6 April 2022 and submitted for decision on 22 June
2022. 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.
2. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 (August 2021 edition), it is competent to deal with
the matter at stake, which concerns an employment-related dispute with an international dimension
between a Chilean player and a Turkish club.
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 (August 2021 edition), and considering that the
present claim was lodged on 6 April 2022, the August 2021 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, the Single Judge stressed the wording of art. 13 par. 4 of the
Procedural Rules, pursuant to which she 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. Her competence and the applicable regulations having been established, the Single Judge entered
into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the abovementioned facts as well as the arguments and the documentation on file. However, the Single Judge
emphasised that in the following considerations she will refer only to the facts, arguments and
documentary evidence, which she considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
6. The Single Judge first noted that the parties concluded a contract valid as from 8 September 2020 until
31 May 2021 according to which the player, inter alia, would receive EUR 400,000 net during the season
REF FPSD-5699
2020/2021 un 10 instalments from September 2020 until June 2021, as well as EUR 20,000 during the
same season as living costs, payable in 10 instalments of EUR 2,000 each.
7. Subsequently, the Single Judge noted that the Claimant lodged a claim before FIFA against the
Respondent and requested the payment of the following amounts:
-EUR 80,000 net, corresponding to his salaries of May and June 2021 (i.e. 40,000*2);
-EUR 20,000 net as living costs from September 2020 until June 2021 (i.e. 2,000*2).
8. On the other hand, the Single Judge took note of the position of the Respondent, and observed that
it acknowledged a debt of EUR 77,621.42, which is in fact close to the amount claimed by the player
as outstanding salaries.
9. In view of the above, the Single Judge understood that the main legal matter at stake is to establish
the exact amount as outstanding salaries.
10.In this regard, the Single Judge observed the documentation provided by the Respondent in its reply,
and noted that they would confirm that, from September 2020 to June 2021, the club paid EUR
40,000*8 = EUR 320,000 as outstanding salaries. The Chamber noted that the Claimant acknowledge
the validity of said evidence.
11.As a result, and considering that the player was entitled to EUR 400,000 net and that he received EUR
320,000 only, the Single Judge established that EUR 80,000 remain outstanding.
12.Consequently, in strict application of the principle of pacta sunt servanda, the Single Judge established
that the Respondent has to pay to the Claimant, the total outstanding amount of EUR 80,000, as
explained above.
13.In addition, as to the amount of EUR 20,000 claimed as living costs as per art. 6.2 of the contract, the
Single Judge observed that the club provided a series of receipt in local currency. However, after duly
reviewing said documentation, the Single Judge noted that it is not conclusive to establish that it
indeed corresponds to the living costs.
14.Moreover, taking into account the request of the Claimant as well as the longstanding jurisprudence
in this regard, the Single Judge decided to award 5% interest p.a. over said amount as from the due
dates.
ii. Consequences
15.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.
REF FPSD-5699
16.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.
17.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.
18.The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations she has
competence to impose sanctions on the club. On account of the above, the Single Judge decided to
impose a reprimand on the club in accordance with art. 12bis par. 4 lit. b) of the Regulations.
19.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
20.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.
21.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.
22.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 creditor, 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 club in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
23.The club shall make full payment (including all applicable interest) to the bank account provided by
the player in the Bank Account Registration Form.
24.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.
REF FPSD-5699
d.
Costs
25. 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.
26. Furthermore, 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.
27. Lastly, the Single Judge concluded her deliberations by rejecting any other requests for relief made
by any of the parties.
REF FPSD-5699
III Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Enzo Pablo Roco Roco, is accepted.
2.
The Respondent, Fatih Karagumruk AS, has to pay to the Claimant, the following amounts:
- EUR 80,000 net as outstanding remuneration plus interest as follows:
- 5% interest p.a. over the amount of EUR 40,000 as from 1 June 2021 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 40,000 as from 1 July 2021 until the date of effective payment;
- EUR 20,000 as outstanding living costs plus interest as follows:
- 5% interest p.a. over the amount of EUR 2,000 as from 1 October 2020 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 2,000 as from 1 November 2020 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 2,000 as from 1 December 2020 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 2,000 as from 1 January 2021 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 2,000 as from 1 February 2021 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 2,000 as from 1 March 2021 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 2,000 as from 1 April 2021 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 2,000 as from 1 May 2021 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 2,000 as from 1 June 2021 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 2,000 as from 1 July 2021 until the date of effective payment;
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
This decision is rendered without costs.
7.
A reprimand (art. 12 bis of the regulations) is imposed on the Respondent.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-5699
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
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