Labour Disputes
Texto da decisão
REF. FPSD-13013
Decision of the
Dispute Resolution Chamber
passed on 19 September 2024
regarding an employment-related dispute concerning the Player
Jesé Rodríguez Ruiz
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Dana Mohamed Al-Noaimi (Qatar), Member
Stijn Boeykens (Belgium), Member
CLAIMANT:
Jesé Rodríguez Ruiz, Spain
Represented by Senn Ferrero Sports & Entertainment
RESPONDENT:
MKE Ankaragücü SK, Türkiye
pg. 2
REF. FPSD-13013
I. Facts of the case
1.
On 18 July 2022, the Spanish player Jesé Rodríguez (hereinafter: Claimant or player) and the
Turkish club MKE Ankaragücü (hereinafter: club or Respondent) concluded an employment
contract (hereinafter: the Contract) valid as from the date of signature until 31 May 2023.
2.
According to art. 3 of the Contract, the Respondent undertook to pay the Claimant the
following remuneration:
3.
Furthermore, according to art. 3 par. 1 “General Provisions”, the parties agreed as follows:
”The minimum net wage payment to be accrued on behalf of the player in accordance with the
Contract or declared Payments to the social security institution are (written in the 3 - PAYMENTS
AND SPECIAL PROVISIONS article above) Paid in the salaries and the player shall declare, accept
and undertake not to demand additionally monthly minimum net wage or the amount declared
to the social security institution. All fees to be paid to the Player under this contract are net of
taxes (including, but not limited to personal income tax, regional tax, municipal tax, or any other
tax according to the legislation in force) and withholding tax. Therefore, the Club will be
responsible for any tax liability derived from the payments to be made to the Player pursuant
pg. 3
REF. FPSD-13013
to this Agreement. The Club would have to make the corresponding gross-up in order to pay to
the Player the net amount agreed. This clause is essential for the validity of the Agreement. For
that reason, should whatever Tax Authorities request from the Player any amount as tax,
withholding, surcharge, sanction, interest or any other tax liability, as a result of the payments
arising from this Agreement, then the Player shall be entitled to claim these amounts to the Club.
For the avoidance of doubts, should the Club fail to pay the amounts agreed to the Player, the
Player shall have the rights to claim such amount against the Club and if necessary to Initiate
legal actions against the Club. Additionally, in no case whatsoever, the Club will retain any
amount of the established in this agreement in regard to social security and/or labour amounts.”
4.
On 12 January 2023, the Claimant and the Respondent (hereinafter jointly: the Parties)
signed a mutual termination agreement (hereinafter: the Termination) in accordance with
which the Contract was terminated amicably.
5.
The Termination reads as follows:
“Following the General Provisions stipulated in the Professional Player Contract, all salaries
paid to the player during the execution of said agreement are net of taxes (including, but
not limited to personal income tax, regional tax, municipal tax, or any other tax according
to the legislation in force) and withholding tax. Therefore, the club will be responsible for
any tax liability derived from the payments made to the player pursuant to the professional
player contract and will provide the player with the withholding tax certificate within the
month of February of 2023. All the tax obligations specified in the professional player
contract shall remain in force until its full completion.”
6.
On 28 March 2023, the Claimant received an accrual receipt from the Turkish tax
authorities, outlining his tax liability for the calendar year 2022 in the amount of
TRY 1,911,273.80.
7.
On 30 March 2023, a representative of the Respondent contacted the Claimant via his
counsel, stating as follows:
“I informed the club about the payment. Jese’s tax payment is in our plans. But I don’t
know when the payment will be made. I will inform you when we made it.”
8.
On 31 March 2023, the Claimant’s abovementioned tax liability fell due.
9.
On 26 April 2023, the Claimant sent a formal communication to the Respondent requesting
payment of the above tax liability directly to the Turkish tax authorities with any applicable
fines and/or interest in no later than 5 days, as well as providing the relevant proof of
payment to the Claimant within 7 days.
10. Between April 2023 and June 2023, the Claimant sent a number of short reminders
regarding the above payment, which remained unanswered.
pg. 4
REF. FPSD-13013
11. On 21 June 2023, the Respondent contacted the Claimant to inform him as follows:
“Our new season budget work continues. If nothing goes wrong, we will make all our payments
(including Jese’s payment) in the first week of July. Until then, we kindly request you not to take
any legal action.”
12. On 20 July 2023, the Respondent sent a further letter to the Claimant, informing as follows:
“Our president stepped up sponsorship deals to pay off all debts by the end of the month. It is
difficult for me to tell you anything since new transfer payments are prioritised during these
periods. However, we want to make your payment as soon as possible. I hope you understand
the situation.”
13. On 9 August 2023, the Respondent sent a further letter to the Claimant, stating:
“Our president asked me to prepare a list of all the tax payments arising from players including
Jese’s. I think we are going to pay them by the end of August. I will let you know when we are
making the payment.”
14. On 23 November 2023, the Claimant sent the Respondent a default notice requesting
payment of TRY 1,911,273.80 plus interest of 2.5% per month as stipulated by Turkish law,
corresponding to the tax liability arising in Türkiye, as well as EUR 47,693.77, corresponding
to the Claimant’s tax liability which had, in the meantime, arisen in Spain. A deadline of ten
days was granted to remedy the alleged breach.
II. Proceedings before FIFA
15. On 12 December 2023, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
a. Position of the Claimant
16. The Claimant requested payment of the outstanding amounts of TRY 1,911,273.80 and
EUR 47,693.77 corresponding to the Claimant’s unpaid tax liability in Türkiye and Spain
respectively.
17. Equally, the Claimant requested interest on the above amounts, as well as for the
Respondent to assume liability for any fines and/or late payment interest that may
potentially accrue due to the non-payment of the abovementioned taxes.
pg. 5
REF. FPSD-13013
18. In his claim, the Claimant argued that the Contract, and by extension, the Termination,
clearly provided for the Respondent to undertake any tax liability, not limited by jurisdiction
or the kind of tax payable.
19. The Claimant equally pointed out that the Respondent had confirmed several times in
writing that it was responsible for his tax liability, making the failure to pay all the more
blatant.
20. The Claimant invoked the principle of pacta sunt servanda.
b. Position of the Respondent
21. In its reply, the Respondent contested the competence of FIFA to deal with the present
claim, as it argued that the basis of the claim is solely based on taxes, thus falling outside
the scope of art. 22 par. 1 lit b).
22. As to the merits, the Respondent pointed out that the Claimant had failed to provide a
translation of the Turkish tax invoice, leading to a misunderstanding in the Claimant’s line
of argument.
23. The Respondent wished to clarify that the total tax liability of the Claimant was
TRY 3,881,457.07, and that this had been reduced by TRY 1,970,478.17 – an amount which
was already remitted to the tax authorities by the former. This, in turn, resulted in the
residual tax liability of TRY 1,911,978.90.
24. The Respondent equally wished to emphasise that neither itself, nor the Claimant have
paid the taxes to the Turkish authorities.
25. The Respondent expressly acknowledged the obligation to pay the taxes to the Turkish
authorities, however, pointed out that the Claimant is not in a position to demand payment
thereof before the Football Tribunal, and that he must first pay the amount himself and
request a reimbursement from the Respondent. The Respondent went on to argue
“Otherwise, the player may receive the above-given amount and then he may not pay the tax. In
this scenario, the club will have to pay the same amount twice.”
26. As for the Spanish taxes, the Respondent contested that the Claimant would not have to
pay any taxes pursuant to the bilateral agreement in place between Türkiye and Spain and
given that the former has already covered a large part of the Claimant’s tax liability in
Türkiye.
27. In conclusion, the Respondent requested for the claim to be rejected.
c. Replica of the Claimant
pg. 6
REF. FPSD-13013
28. In his replica, the Claimant firstly emphasised that FIFA is competent, as the taxes claimed
are related to the Contract – therefore, being employment related. The Claimant also
pointed out, for the sake of completeness, that both the Contract and the Termination
contain jurisdiction clauses exclusively in favour of FIFA.
29. As to the tax liability in Türkiye, the Claimant reiterated that the Respondent, per the clear
wording of the Contract and the various acknowledgements in the correspondence
exchanged between the parties, bears the liability. The Claimant confirmed that, due to the
Respondent’s repeated indications that it would make the payment itself, he has not
proceeded to paying the taxes, without prejudice to subsequently requesting
reimbursement.
30. The Claimant equally asserted that “it makes no difference whether the club pays the tax
amount into [the Claimant’s] bank account or directly to the Turkish Treasury.”
31. As to the Spanish tax liability, the Claimant confirmed that, even if one takes into
consideration the bilateral agreement for the avoidance of double taxation between Spain
and Türkiye, as Spain has a higher tax rate, the Claimant is still obliged to pay taxes as
calculated in his request for relief in Spain.
32. The Claimant adduced his actual tax declaration and a simulation of his tax declaration
excluding the Turkish income, pointing out that the difference between the two represents
the tax liability the Respondent should bear – i.e. EUR 47,693.77.
33. In conclusion, the Claimant insisted on his request for relief.
d. Duplica of the Respondent
34. In its duplica, the Respondent reiterated its previous arguments, and emphasised several
times that, without paying the taxes himself first, the Claimant cannot request the DRC to
award him the abovementioned amounts, due to the risk of unjust enrichment.
pg. 7
REF. FPSD-13013
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
35. First of all, the Dispute Resolution Chamber (hereinafter: the 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 12 December 2023 and submitted for decision
on 19 September 2024. 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.
36. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 edition), the Dispute
Resolution Chamber is – in principle – competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
Spanish player and a Turkish club.
37. The Chamber did not fail to take note of the Respondent’s challenge as to the competence
of FIFA to deal with the present claim, as it is allegedly related exclusively related to taxes,
therefore falling outside the scope of art. 22 of the Regulations on the Status and Transfer
of Players.
38. In the case at hand, the Chamber noted that, given that the Claimant’s claim for taxes arises
from the employment relationship previously in place between the parties (in particular,
art. 3 par. 1 of the Contract and the second paragraph of the Termination), the claim is
employment-related and therefore admissible.
39. The Chamber hereby specifically made reference to the jurisprudence of the Court of
Arbitration for Sports, in particular CAS 2023/A/10142: Arabi SC v. Juan Ignacio Martinez,
whereas the Sole Arbitrator in such award considered that “previous CAS panels have found,
much like in the Appealed Decision, that FIFA is competent to hear disputes related to taxes as
long as the claims appear to be contractually grounded. (…) The Sole Arbitrator finds that it is
apparent that the Coach’s claim is grounded in Article 7 of the Contract and, thus, the FIFA PSC
was competent to hear the dispute as it is an employment-related dispute. In particular, the Sole
Arbitrator is not convinced by the Club’s argument that, because it interprets Article 7 of the
Contract to only create an obligation for the Club to compensate the Coach net of Kuwaiti taxes,
this renders the Coach’s claim outside the bounds of its employment relationship with the Club.”
(par. 104)
40. The Chamber thus concluded that it had jurisdiction to hear the present dispute as to its
merits and proceeded with its deliberations.
pg. 8
REF. FPSD-13013
41. 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 Players (June 2024 edition), and
considering that the present claim was lodged on 12 December 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
42. 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
43. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
i. Main legal discussion and considerations
44. The Chamber then moved to the substance of the matter, and took note of the fact that
the parties strongly dispute the payment of taxes related to contractually stipulated
salaries.
45. In this context, the Chamber acknowledged that its task was to determine the extent to
which the Respondent undertook to pay the Claimant’s taxes, as a general matter and in
terms of the relevant jurisdiction, via the provisions contained in the Contract and, by
extension, the Termination, and what the consequences thereof may be.
46. The Chamber began by briefly recalling the parties’ submissions, with the Claimant on one
hand arguing that the Contract, and by extension, the Termination, clearly provided for the
Respondent to undertake any tax liability, not limited by jurisdiction or the kind of tax
payable. The Claimant emphasised that such tax liability extends to not only Türkyie, but
also Spain. The Claimant stressed that the Respondent should be held liable for any late
payment fines or interest that may potentially accrue due to the non-payment of the
abovementioned taxes.
pg. 9
REF. FPSD-13013
47. On the other hand, the Respondent argued that no amounts are presently due, since the
Claimant must first pay the taxes in order to ascertain that the amounts in dispute amount
to the actual tax liability, rather than being based on a mere estimate. Although the
Respondent expressly acknowledged the obligation to pay the taxes to the Turkish
authorities, it pointed out that such payment must be made by the Claimant himself, and
subsequently reimbursed by itself. Equally, the Respondent challenged the obligation to
pay the taxes in Spain based on the existence of a bilateral agreement in place between
Spain and Türkiye which allegedly takes into account the Claimant’s tax liability incurred in
Türkiye already.
48. Whilst the non-payment of the amounts remains uncontested, the Chamber deemed that
the Claimant bore the burden of proving that he is entitled to the amounts in question to
begin with.
49. The Chamber hereby wished to emphasise that, as this was a tax-related case, its general
approach consists of entertaining claims for reimbursement, specifically for the reasons
stated by the Respondent. The Chamber emphasised that it is not in a position to assess
countries’ specific tax codes and obligations arising therefrom unless the party seeking
payment of those taxes can prove that the relevant tax liability has been properly invoiced
by the authorities, and that payment of such amount based on such invoice took place.
50. At this stage, the Chamber referred to the jurisprudence of the CAS, in particular
CAS 2023/A/10142: Arabi SC v. Juan Ignacio Martinez, wherein it found the following
provisions relevant in the present case:
Par. 97 & 99 of the CAS award: “(…) a claim for payment net of taxes is substantively different
to a claim for reimbursement of taxes already paid to a tax authority in a particular country.
(…) As such, the Coach is free to lodge a claim, as well as both the FIFA PSC and the Sole
Arbitrator are free to rule on, the issue of a tax reimbursement for taxes paid in Spain by the
Coach without infringing on public policy.”
Par. 105: “to the extent that the dispute encompasses a tax-related issue, this was clearly
identifiable given that the Coach had already incurred the tax burden, meaning that the FIFA
PSC was not required to make any determination regarding Spanish tax law.”
Par. 113 & 115: “In CAS 2006/O/1055, (…) the amount awarded in compensation was
“grossed-up” (i.e., the amount owed, in addition to the expected tax burden), given that the
contract contained the anticipated tax rate the coach would be subject to in Spain (ibid). (…)
The last finding of the panel, stating that the proper method to calculate compensation, is the
“gross-wage method” does not seem universally adopted in CAS jurisprudence. For instance,
the sole arbitrator in CAS 2019/A/6649 & CAS 2019/A/6650 ruled that it did not “consider it
appropriate to gross up this net amount of compensation”, on account of the complexity of
the French tax regime.”
pg. 10
REF. FPSD-13013
Par. 122: “Given that the Coach has incurred a cost as a consequence of the Club’s breach,
that being a tax payment in Spain for the compensation due under the Contract, the Sole
Arbitrator finds that the Club is liable to reimburse the Coach for the payment he made to
the Spanish Tax Authorities.
51. In the case at hand, the Claimant confirmed not having made any payments to any tax
authority, requesting an a priori payment thereof from the Respondent and basing his
calculation on his own tax declaration, rather than a clear invoice.
52. The Chamber recalled from the above that the payment of the relevant tax obligation is
requisite in order for any liability to be established towards the Respondent (the party
which undertook to pay the contractually stipulated remuneration net of any taxes), after
which a claim may be lodged for reimbursement of the incurred costs.
53. For completeness’ sake, and with reference to the wording of art. 3 par. 1 of the Contract,
the evidence on file and the abovementioned CAS award, it was evident in the Chamber’s
opinion that the Respondent (should an appropriate proof of payment of the relevant taxes
be filed at the relevant time) would appear to be obligated to reimburse the taxes in both
Türkiye and Spain.
54. Equally, and by the same token, the Chamber wished to point out that the admissibility /
prescription of such new claim shall be assessed in accordance with the date the tax invoice
has been produced by the relevant tax authority, given the fact that the reimbursement is
based on the payment of such invoice.
55. In conclusion, the Chamber decided that the claim at hand was premature and the decision
at hand without prejudice to the right of the Claimant to lodge a further claim for the
amounts in dispute, subject to the requirements set out in art. 23 par. 3 of the Regulations.
d. Costs
56. 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.
57. 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.
58. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 11
REF. FPSD-13013
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the claimant, Jesé Rodríguez
Ruiz.
2.
The claim of the Claimant is premature.
3.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 12
REF. FPSD-13013
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
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 13