Dispute Resolution Chamber
Texto da decisão
REF FPSD-1921
Decision of the
Dispute Resolution Chamber
passed on 20 May 2021
regarding an employment-related dispute concerning the player Vjekoslav Tomić
COMPOSITION:
Geoff Thompson (England), Chairman
Michele Colucci (Italy), member
Pavel Pivovarov (Russia), member
CLAIMANT:
Vjekoslav Tomić, Croatia
RESPONDENT:
Sanliurfaspor, Turkey
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REF FPSD-1921
I. Facts
1.
On 10 August 2018, the FIFA Dispute Resolution Chamber (17-01559/ssp) passed a decision stating,
inter alia, the following:
“2. The Respondent, Sanliurfaspor Kulübü Dernegi, has to pay to the Claimant, within 30 days as
from the date of notification of this decision, outstanding remuneration in the amount of EUR
55,000, plus 5% interest p.a. (…)
The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this
decision, compensation for breach of contract in the amount of EUR 153,000, plus 5% interest p.a.
as from 14 September 2017 until the date of effective payment.”
2.
On 8 September 2020, the parties concluded a “protocol” stipulating the following:
“1) The Club undertakes to pay to the Player the sum of net EUR 200,000 (…) in 3 instalments as
follows:
1. EUR 80,000.00 by no lacer than 31 December 2020, and
2. EUR 80,000.00 by no later than 31 July 2021, and
3. EUR 60,000.00 by no later than 31 December 2021,
(…)
2) All amounts of the settlement sum above shall be considered net of taxes”.
3.
The protocol further stipulated the following:
“Article 2:
Should the Club fail to pay to the Player any of the installment of the Settlement Sum within the
deadlines (…), then all the remaining installments shall immediately fall due, and in such case the
Club shall pay to the Player, in addition to the full amount of Settlement Sum specified in the article
1 point 1) herein of net EUR 200,000 (…), a lump sum penalty for delay in payment of net EUR
80,000.00 (…s), which shall mature within 7 days as from the delay payment in question (…),”
4. The protocol included the following signature box:
5.
On 12 February 2021, the legal representative of the player sent a default notice, requesting the
payment of a total amount of EUR 280,000.
6.
On 3 March 2021, the Claimant lodged a claim before FIFA and requested the payment of the
amount of net EUR 280,000 broken down as follows, plus interest:
- Settlement Sum of EUR 200,000 net, due on 1 January 2021,
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-
Penalty of EUR 80,000 net (eighty thousand euros), due on 8 January 2021; and
Tax of EUR 112,000 on top of the above mentioned net amounts, due on 8 January 2021;
7. In its reply to the claim, the respondent disputed the validity of the payment protocol since “the
signature is the signature of Ibrahim Halil Haktankacmaz.” The club argued that “this person has
any connection with the Respondent Club and for this reason the Respondent Club can not be held
liable for this suspicious protocol”
8. Moreover, the Respondent expressed that “because of economic and political crisis in Turkey, and
the pandemic diseases' negative effects, the Club has difficulty in financial position. The crisis was
caused by the Turkish economy's excessive current account deficit and foreign-currency debt. in
combination and it is characterized by the Turkish lira (TRY) plunging in value, high inflation, rising
borrowing costs, and correspondingly rising loan defaults. Also, the covid-19 virus pandemic disease
has ruined the cash flow and the financial potential of the Club”
9. As a result, the club requested to reduce the payable amounts in view of the force majeure.
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II. Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to
as Chamber or DRC) analysed whether it was competent to deal with the case at hand.
Taking into account the wording of art. 21 of the January 2021 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural
Rules is applicable to the matter at hand.
2.
Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural
Rules and emphasised that, in accordance with art. 24 par. 1 in combination with art.
22 lit. b) of the Regulations on the Status and Transfer of Players, the Dispute Resolution
Chamber is competent to deal with matters which concern employment-related disputes
with an international dimension between players and clubs.
3.
In continuation, the Dispute Resolution Chamber analysed which edition of the Regulations
of the Status and Transfer of Players should be applicable to the present matter. In this
respect, the Dispute Resolution Chamber confirmed that in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players, and considering the date
when the claim was lodged, the February 2021 edition of the aforementioned regulations
(hereinafter: the Regulations) is applicable to the matter at hand.
4.
With the above having been established, the Dispute Resolution Chamber entered into the
substance of the matter. In doing so, it started to acknowledge the facts of the case as well
as the documents contained in the file. However, the Dispute Resolution Chamber
emphasized that in the following considerations it will refer only to facts, arguments and
documentary evidence which it considered pertinent for the assessment of the matter at
hand.
5.
In this respect, the Chamber noted that, on 10 August 2018, the FIFA Dispute Resolution
Chamber (17-01559/ssp) passed a decision concerning a previous employment-related
dispute arisen between the parties.
6.
Subsequently, the Chamber noted that, according to the Claimant, on 8 September 2020, he
concluded a settlement agreement concerning said dispute, by means of which the club
accepted to pay the total amount of EUR 200,000 net in three instalments, and that failure
to do so within the deadline would imply “a lump sum penalty for delay in payment of net
EUR 80,000.00 (…s), which shall mature within 7 days as from the delay payment in
question”.
7.
Thereafter, the Chamber noted that the Claimant lodged a claim against the Respondent,
requesting, inter alia, the payment of EUR 200,000 net, as stipulated in the settlement
agreement, plus EUR 80,000, corresponding to the agreed penalty.
8.
On the other hand, the Chamber took note of the Respondent’s position, which disputed
the validity of the payment protocol since “the signature is the signature of Ibrahim Halil
Haktankacmaz.” and “the respondent disputed the validity of the payment protocol since
“the signature is the signature of Ibrahim Halil Haktankacmaz.”
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9.
In view of the dissent between the parties, the Chamber understood that the first legal issue
at stake is to determine the possible validity of the aforementioned protocol.
10. In this respect, the Chamber considered pertinent to recall the contents of art. 12 of the
Procedural Rules, according to which “3. Any party claiming a right on the basis of an alleged
fact shall carry the burden of proof. During the proceedings, the parties shall submit all
relevant facts and evidence of which they are aware at that time, or of which they should
have been aware if they had exercised due care” and “7. Evidence shall be considered with
free discretion, taking into account the conduct of the parties during the proceedings,
especially a failure to comply with a personal summons, a refusal to answer questions and
the withholding of requested evidence.”
11. In this respect, the Chamber noted that, on 29 September 2020, the Turkish Football
Association notified the Disciplinary Department of FIFA, about the existence of this
protocol. In the view of the Chamber, this circumstance is already a clear indicator of the
authenticity of said document.
12. In addition, as to the Respondent’s argument, according to which the protocol has no legal
effect since it had been signed on behalf of the club by a non-authorized person, the DRC
decided that such argumentation cannot be upheld due to the fact that in accordance with
the principle of good faith, bona fide, to be respected by the parties during the conclusion
of contracts, the Claimant was in good faith authorized to believe that the person signing
the relevant agreement on behalf of the Respondent was legally authorized to sign it on
behalf of the Respondent. Equally and in accordance with the aforementioned principle of
burden of proof, the DRC outlined that the Respondent never provided documentary
evidence demonstrating that the Claimant was aware of the situation outlined by the
Respondent at the moment of signing the pertinent agreement.
13. As a result, the Chamber established that the contract was duly signed between the parties.
14. As to the amounts claimed by the player, the Chamber noted that the club did not provide
any evidence as to having settled its debt. Given the contents of art. 2 of the protocol,
according to which “Should the Club fail to pay to the Player any of the installment of the
Settlement Sum within the deadlines (…), then all the remaining installments shall
immediately fall due”, the Chamber understood that, since the club failed to pay the
amount of EUR 80,000 on 31 December 2020, the entire value of the protocol feel due as
from the following day, i.e. as from 1 January 2021.
15. Consequently, the Chamber assumed that the amount of EUR 200,000 remained
outstanding. As a result, in strict application of the principle of pacta sunt servanda, the
Dispute Resolution Chamber established that the Respondent has to pay to the Claimant,
the total outstanding amount of EUR 200,000 net, as agreed in the protocol.
16. Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the Dispute Resolution Chamber decided to award 5% interest
p.a. over said amount as from the due date.
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17. Subsequently, the Chamber referred to the Claimant’s request to be paid with EUR 80,000,
in application of art. 2 of the protocol.
18. In this respect, the Chamber observed that said provision stipulated the following: “Should
the Club fail to pay to the Player any of the installment of the Settlement Sum within the
deadlines (…), then all the remaining installments shall immediately fall due, and in such
case the Club shall pay to the Player, in addition to the full amount of Settlement Sum
specified in the article 1 point 1) herein of net EUR 200,000 (…), a lump sum penalty for
delay in payment of net EUR 80,000.00 (…s), which shall mature within 7 days as from the
delay payment in question (…),”
19. In relation to said penalty, and as established above, the Chamber observed that all
conditions for its payment were met. In addition, the Chamber considered that, in view of
the applicable circumstances (i.e. the protocol was signed after a previous decision of the
Dispute Resolution Chamber), that the amount of the penalty appears to be reasonable.
20. As a result, in strict application of the principle of pacta sunt servanda, the Dispute
Resolution Chamber established that the Respondent has to pay to the Claimant, a
contractual penalty in the amount of EUR 80,000 net, as agreed in the protocol.
21. Moreover, the Chamber also noted that the Claimant requested the payment of taxes over
the due amounts. However, given that, in line with the contents of the protocol, the granted
amounts are net, the Chamber understood that said the request for taxes appears to not be
relevant.
22. Furthermore, taking into account the previous considerations, the Dispute Resolution
Chamber referred to par. 1 and 2 of art. 24bis 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.
23. In this regard, the Dispute Resolution Chamber pointed out 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 and for the maximum duration of three entire and consecutive
registration periods.
24. Therefore, bearing in mind the above, the Dispute Resolution Chamber decided that, in the
event that the Respondent does not pay the amounts due to the Claimant within 45 days as
from the moment in which the Claimant, following the notification of the present decision,
communicates the relevant bank details to the Respondent, a ban from registering any new
players, either nationally or internationally, for the maximum duration of three entire and
consecutive registration periods shall become effective on the Respondent in accordance
with art. 24bis par. 2 and 4 of the Regulations.
25. Finally, the Dispute Resolution Chamber 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. 24bis par. 3 of the Regulations.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Vjekoslav Tomić, is partially accepted.
2.
The Respondent, Sanliurfaspor, has to pay to the Claimant, the following amounts:
- EUR 200,000 net as outstanding remuneration plus 5% interest p.a. as from 1
January 2021 until the date of effective payment.
- EUR 80,000 net as contractual penalty.
3.
Any further claims of the Claimant are rejected.
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 article 24bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid 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 paid by the end of the 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 24bis of the Regulations on the Status and Transfer of Players.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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).
CONTACT INFORMATION:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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