Labour Disputes
Texto da decisão
REF FPSD-2956
Decision of the
Dispute Resolution Chamber
passed on 27 October 2021
regarding an employment-related dispute concerning the player Idriz Voca
BY:
Jon Newman (USA)
CLAIMANT:
Idriz Voca, Switzerland
Represented by René Strittmatter
RESPONDENT:
MKE Ankaragucu SK, Turkey
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REF FPSD-2956
I.
Facts of the case
1.
On 23 September 2020, the Swiss player, Idriz Voca (hereinafter: the Claimant), and the
Turkish club, MKE Ankaragucu SK (hereinafter: the Respondent) signed an employment
contract (hereinafter: the contract) valid as from 23 September 2020 until 31 May 2022.
2.
Pursuant to art. 3 of the contract, the Claimant was entitled to the following remuneration
for the 2020/2021 season:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
3.
EUR 50,000 – payable on 25 September 2020;
EUR 50,000 – payable on 30 September 2020;
EUR 50,000 – payable on 31 October 2020;
EUR 50,000 – payable on 30 November 2020;
EUR 50,000 – payable on 31 December 2020;
EUR 50,000 – payable on 31 January 2021;
EUR 50,000 – payable on 28 February 2021;
EUR 50,000 – payable on 31 March 2021;
EUR 50,000 – payable on 30 April 2021;
EUR 50,500 – payable on 31 May 2021.
On 22 April 2021, the parties concluded a protocol in terms of which the Respondent
declared the following:
“The club hereby declares to pay 50.000 Euros on 23rd April 2021 and 115.000 Euros by 8th
May 2021.
If the payments are not made by the above-mentioned dates, the player may terminate his
contract without any further notice. If the above-mentioned payments are not paid on time,
the club hereby confirms to pay %10 penalty for the unpaid part of the payment. The club
declares to pay March-April and May salaries by 31st May 2021.”
4.
On 7 June 2021, the Claimant informed the Respondent that due to its failure to pay the
aforesaid remuneration it will proceed to file a formal complaint at FIFA.
II. Proceedings before FIFA
5.
On 2 July 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
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a. Position of the Claimant
6.
According to the Claimant, the Respondent failed to pay his remuneration for the months of
March, April and May 2021, with the total outstanding remuneration amounting to EUR
150,000.
7.
The requests for relief of the Claimant, were payment of the amount of EUR 150,000
corresponding to his outstanding remuneration for the months of March, April and May
2021, plus a penalty of EUR 15,000 as per the protocol signed on 22 April 2021.
8.
In addition, the Claimant requested 5% interest p.a. on the above amounts as from 8 June
2021.
b. Position of the Respondent
9.
According to the Respondent, in accordance with the protocol, the parties did not agree that
a penalty fee would apply to the three unpaid salaries as claimed.
10. The Respondent stipulated the following:
“As can be seen from the protocol, the penalty fee has only been determined for the
"above-mentioned payments" which are 50.000 Euros and 115.000 Euros. March-April and
May salaries has not been included to this clause.”
11. The Respondent therefore rejected the penalty fee claim of the Claimant and further
stipulated that the Claimant is only entitled to “request his 3 monthly salaries after the
deductions has been done.” In this context, the Respondent made reference to “the polar
watch” which should be refunded by the Claimant and to be deducted from the receivables
of the Claimant.
12. On account of the above, the Respondent declared that “the unpaid receivable of the player
is equal to 149.500 Euros and rejected all the other claims of the player. “
III. Considerations of the Single Judge 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 the Single Judge) 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 2 July 2021 and
submitted for decision on 27 October 2021. Taking into account the wording of art. 34 of
the October 2021 edition of the Procedural Rules Governing the Football Tribunal
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(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 (August 2021 edition) and art. 24 par. 1 of the Procedural
Rules, the Single Judge is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Swiss 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, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Player (August 2021 edition), and
considering that the present claim was lodged on 2 July 2021, the February 2021 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. Its 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 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
it considered pertinent for the assessment of the matter at hand.
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 on 23 September 2020, the Claimant and the
Respondent had concluded an employment contract valid as from 23 September 2020 until
31 May 2022 and that the parties concluded a subsequent protocol on 20 April 2021.
19. The Single Judge observed that the Claimant lodged a claim in front of FIFA against the
Respondent, indicating that the Respondent had failed to pay his remuneration for the
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months of March, April and May 2021, with the total outstanding remuneration being the
amount of EUR 150,000.
20. The Single Judge noted that the Respondent in its reply did not contest the Claimant’s
entitlement to the claimed outstanding remuneration but argued that a “polar watch”, which
it paid for within the Claimant’s possession should be deducted from the amount as claimed
and moreover that a penalty fee is not payable as per the protocol. In this regard, the Single
Judge noted the payment receipt the Respondent submitted, which according to the
Respondent illustrated the payment made in respect of the “polar watch”.
21. After having analysed the documentation on file, the Single Judge noted that payment receipt
did not reflect any amount or value of the said “polar watch” and therefore cannot be taken
into account as proof of payment or as corroborating documentary evidence, substantiating
this claim.
22. As a result of the foregoing, the Single Judge concluded that argument of the Respondent in
this respect cannot be upheld.
23. Considering the above and the documentation presented by the Claimant, the Single Judge
concluded that the Claimant had substantiated its claim pertaining to his outstanding
remuneration with sufficient documentary evidence.
ii. Consequences
24. 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 and
decided, that the Respondent must fulfil its obligations in accordance with the general legal
principle of “pacta sunt servanda”.
25. Consequently, the Single Judge decided that the Respondent is liable to pay to the Claimant
his outstanding remuneration, in the amount of EUR 150,000, corresponding to:
-
EUR 50,000 payable on 31 March 2021;
EUR 50,000 payable on 30 April 2021;
EUR 50,000 payable on 30 May 2021.
26. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the Single Judge decided to award the Claimant interest at
the rate of 5% p.a. on the above amounts as from the respective due dates until the date of
effective payment.
27. As to the penalty fee of EUR 15,000, based on the content of the protocol, the Single Judge
decided that the penalty fee did not apply to the salaries of March; April and May 2021.
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Consequently, the Single Judge decided to reject the Claimant’s request relating to the said
penalty fee.
iii. Compliance with monetary decisions
28. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24bis
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.
29. 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.
30. 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. 24bis par. 2, 4, and 7 of the Regulations.
31. 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.
32. 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. 24bis par.
8 of the Regulations.
d. Costs
33. 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.
34. 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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35. 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, Idriz Voca, is partially accepted.
2.
The Respondent, MKE Ankaragucu SK, has to pay to the Claimant, the amount of EUR
150,000 as outstanding remuneration plus 5% interest p.a. as from the respective due dates
until the date of effective payment as follows:
-
▪
on the amount of EUR 50,000 as from 1 April 2021
on the amount of EUR 50,000 as from 1 May 2021
on the amount of EUR 50,000 as from 1 June 2021
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 art. 24bis 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 art. 24bis par. 7 and 8 and art. 24ter 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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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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