F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – overdue payables / debiti scaduti – (2020-2021) – fifa.com – atto non ufficiale – Decision 8 December 2020

Decision of the

Single Judge of the Players' Status Committee

passed in Zurich, Switzerland, on 8 December 2020,

regarding a dispute concerning the transfer of the player Deniz Turuc

BY:

José Luis Andrade (Portugal), Single Judge of the PSC

CLAIMANT:

GO AHEAD EAGLES, Netherlands

Represented by Mr. Laurens Korbee

RESPONDENT:

KAYSERISPOR KULUBU DERNEGI, Turkey

I.

I. FACTS OF THE CASEFACTS OF THE CASE

1. On 27 July 2015, the Dutch club, Go Ahead Eagles (hereinafter: Claimant), and the Turkish club, Kayserispor Kulubu Dernegi (hereinafter: Respondent), signed a transfer agreement (hereinafter: transfer agreement) for the player Deniz Türüc (hereinafter: the player). The parties agreed on a transfer fee in the total amount of EUR 220,000.

2. In accordance with the transfer agreement, the Respondent undertook to pay to the Claimant inter alia a 15% sell-on fee in the event of a future transfer of the player from the Respondent to a third club.

3. Clause 2.3 of the transfer agreement established an interest rate of 2% per month in case of default payment by the Respondent.

4. On 7 August 2015, the player was registered with the Respondent.

5. On 28 July 2015, the player and the Respondent signed an employment contract valid as from the date of signature until 31 May 2018.

6. On 1 June 2018, the player and the Respondent signed an employment contract valid as from the date of signature until 31 May 2020.

7. On 2 August 2019, the player was permanently transferred from the Respondent to the Turkish club, Fenerbahçe (hereinafter: the third club).

8. On 20 December 2019, the Dutch Federation of Professional Football (hereinafter: the FBO), on behalf of the Claimant, sent a default letter to the Respondent. The FBO granted a deadline until 3 January 2020 to remedy the default.

9. On 16 March 2020, the FBO sent a further letter to the Respondent requesting the payment of the overdue payables and granting a 14 days’ deadline to remedy the situation.

10. On 3 April 2020 the Claimant lodged a claim against the Respondent, requesting the amount of EUR 300,000 plus “an interest rate of 2% per month on the amounts (i.e. First, Second, Third and Fourth Instalment)”, broken down as follows:

a. EUR 120,000 corresponding to 15% of EUR 800,000 due in 10 working days as from 17 August 2019;

b. EUR 60,000 corresponding to 15% of EUR 400,000 due in 10 working days as from 31 October 2019;

c. EUR 60,000 corresponding to 15% of EUR 400,000 due in 10 working days as from 31 December 2019;

d. EUR 60,000 corresponding to 15% of EUR 400,000 due in 10 working days as from 31 January 2020.

11. In support of its allegations, the Claimant provided a copy of the transfer agreement concluded between the Respondent and the third club. According to such documentation, the third club committed itself to pay to the Respondent an amount of EUR 2,000,000, payable in 4 instalments, as follows:

a. EUR 800,000 on 17 August 2019;

b. EUR 400,000 on 31 October 2019;

c. EUR 400,000 on 31 December 2019;

d. EUR 400,000 on 31 January 2020

12. In reply to the claim of the Claimant, the Respondent held that the contract with the player came to its natural term on 31 May 2018 and that the player and the Respondent signed another employment contract on 1 June 2018 while the player was “a free agent” for a day.

13. The Respondent considered that the sell-on fee should only be considered within the timeframe of the initial employment contract. The Respondent held that the “sell on clause which constitutes the legal essence of this conflict has expired along with the first employment contract on 31 May 2018, [the Claimant]’s capacity to raise a claim regarding has also expired”.

14. The Respondent underlined that the second contract is not an extension of the first one and that the sell-on clause has to be limited in time.

15. The Respondent held that the transfer agreement with the third club provided by the Claimant is forged as to the signature and provided the last page of the transfer agreement with the third club. The Respondent also held that no decision could be taken on the basis of a forged document and asked that the claim be rejected.

16. When asked by FIFA to provide the original of the transfer agreement, the Respondent refused to do so.

17. A request was made by the FIFA administration to the Turkish Football Federation to receive a copy of the transfer agreement between the Respondent and third club.

18. Upon this request, the Turkish FA informed FIFA that “the contract between the player and Kayserispor was mutually terminated on 5 August 2019. For that reason, we do not have any transfer agreement concluded between Kayserispor and Fenerbahce in our records”.

II.

II. CCONSIDERATIONSONSIDERATIONS OF THE SINGLE OF THE SINGLE JUDGE OF THE JUDGE OF THE PLAYERS' STATUS PLAYERS' STATUS COMMITTEECOMMITTEE

a.

a. Competence and applicable legal framework.Competence and applicable legal framework.

19. First of all, the Single Judge analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 3 April 2020 and submitted to a decision on 8 December 2020. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition June 2020; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

20. Subsequently, the Single Judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 23 par. 1 in conjunction with art. 22 lit. f of the Regulations on the Status and Transfer of Players (edition October 2020) he is competent to deal with the matter at stake, which concerns dispute with an international dimension between clubs belonging to different associations.

21. Furthermore, 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 par. 2 of the Regulations on the Status and Transfer of Players (edition October 2020), and considering that the present claim was lodged on 3 April 2020, the March 2020 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

b.

b. Burden of proofBurden of proof

22. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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, he stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties.

23. In this respect, the Single Judge also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c.

c. Merits of the disputeMerits of the dispute

24. His competence and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started by acknowledging the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Single Judge emphasised that in the following considerations it 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

25. Having said this, the Single Judge acknowledged that the Claimant and the Respondent signed the transfer agreement, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, 15% as a sell-on fee.

26. The Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent has overdue payables towards it in the total amount of EUR 300,000, broken down as follows:

a. EUR 120,000 corresponding to 15% of EUR 800,000 due in 10 working days as from 17 August 2019;

b. EUR 60,000 corresponding to 15% of EUR 400,000 due in 10 working days as from 31 October 2019;

c. EUR 60,000 corresponding to 15% of EUR 400,000 due in 10 working days as from 31 December 2019;

d. EUR 60,000 corresponding to 15% of EUR 400,000 due in 10 working days as from 31 January 2020.

27. In this context, the Single Judge took particular note of the fact that, on 16 March 2020, the Claimant put the Respondent in default of payment of the aforementioned amounts, setting a time limit of 14 days in order to remedy the default.

28. Consequently, the Single Judge concluded that the Claimant had duly proceeded in accordance with art. 12bis par. 3 of the Regulations, which stipulates that the creditor (player or club) must have put the debtor club in default in writing and have granted a deadline of at least ten days for the debtor club to comply with its financial obligation(s).

29. Subsequently, the Single Judge took into account that the Respondent, for its part, is arguing that since the first employment contract with the player came to its natural end and they signed another contract the following day, the player was “a free agent for a day”. As such, the Respondent deemed that the sell-on fee was limited in time to the duration of the first employment contract only. The Single Judge also noted that the Respondent advanced a series of arguments regarding forgery of the transfer agreement between the Respondent and the third club.

30. To this end, the Single Judge observed that the sell-on fee is dependent on the following transfer agreement concluded with the third club only. Thus, he concluded that the player’s employment relationship with the Respondent has no influence on the Claimant’s entitlement to the sell-on fee, and decided that the Respondent’s argument in this respect must be rejected.

31. The Single Judge subsequently turned to the Respondent’s allegation of forgery, an while recalling the aforementioned principle of burden of proof, concluded that such line of reasoning must also be rejected on the grounds that the Respondent failed to provide an entire copy of the transfer agreement once requested to do so by the FIFA general secretariat. The Single Judge emphasized that no other page of the transfer agreement, including the page with the transfer fee, was provided by the Respondent, but only the last page of the alleged subsequent transfer agreement executed with the third club.

32. Equally, the Single Judge noted that the Respondent refused to forward the document it claimed to be the original one.

33. Consequently, the Single Judge concluded that the Respondent failed to discharge its burden of proof in regards to the allegation of forgery, and that the sell-on fee shall be calculated based on the version of the transfer agreement provided by the Claimant.

34. Taking into account the documentation presented by the Claimant in support of its petition, the Single Judge concluded that the Claimant had only partially substantiated his claim pertaining to overdue payables with pertinent documentary evidence.

35. On account of the aforementioned considerations and the documentary evidence provided by the Claimant, the Single Judge established that the Respondent failed to remit the Claimant’s remuneration in the total amount of EUR 300,000 corresponding to sell-on fee agreed under the transfer agreement.

36. In addition, the Single Judge established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

37. Consequently, the Single Judge decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant overdue payables in the total amount of EUR 300,000.

38. In addition, taking into account the Claimant’s request as well as the constant practice of the Players’ Status Committee, the Single Judge decided that the interest rate of 2% per month shall be considered excessive and had to be reduced. Accordingly, the Single Judge concluded that the Respondent must pay to the Claimant interest of 5% p.a. on each of the relevant payment(s) as of the day following the day on which the relevant payment(s) fell due, until the date of effective payment.

ii. Article 12bis of the Regulations

39. In continuation, taking into account the applicable Regulations, 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.

40. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. On account of the above and bearing in mind that the club is a repeat offender, the Single Judge decided to impose a fine on the Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations. Furthermore, taking into consideration the amount due of EUR 300,000, the Single Judge regarded a fine amounting to CHF 20,000 as appropriate and hence decided to impose said fine on the Respondent.

41. In this connection, the Single Judge wished to highlight that a repeated offence will be considered as an aggravating circumstance and lead to more severe penalty in accordance with art. 12bis par. 6 of the Regulations.

iii. Compliance with monetary decisions

42. Finally, taking into account the applicable Regulations, the Single Judge 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.

43. 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 and for the maximum duration of three entire and consecutive registration periods.

44. Therefore, bearing in mind the above, the Single Judge 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 latter communicates the relevant bank details to the Respondent, provided that the decision is final and binding, 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.

45. The Single Judge recalled that the above-mentioned bans 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.

46. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief made by any of the parties.

d.

d. CostsCosts

47. The Single Judge referred to article 18 par. 1 of the Procedural Rules, according to which costs in the maximum amount of CHF 25,000 are levied in connection with proceedings of the Players’ Status Committee and the single judge, taking into account the parties’ degree of success in the proceedings. Equally, the Single Judge recalled the temporary amendments outlined in art. 18 par. 1 lit. ii) of the Procedural Rules, pursuant to which For any claim or counterclaim lodged prior to 10 June 2020 which has yet to be decided at the time of this temporary amendment, the maximum amount of procedural costs levied shall be equivalent to any advance of costs paid.

48. Bearing the above in mind, coupled with the fact that the Claimant paid CHF 5,000 as advance of costs and that the claim was accepted almost in its entirety, the Single Judge decided that the costs of the proceeding shall be of CHF 5,000 and shall be borne by the Respondent. Consequently, the Claimant is entitled to a reimbursement of the CHF 5,000 paid as advance of costs

49. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

III.

III. DECISIONDECISION OF THEOF THE SINGLE JUDGE OF THESINGLE JUDGE OF THE PLAYERS' STATUS PLAYERS' STATUS COMMITTEECOMMITTEE

1. The claim of the Claimant, Go Ahead Eagles, is partially accepted.

2. The Respondent, Kayserispor Kulubu Dernegi, has to pay to the Claimant, the following amount:

- EUR 300,000 plus 5% interest p.a. until the effective date of payment as follows:

o on the amount of EUR 120,000 as from 28 August 2019;

o on the amount of EUR 60,000 as from 11 November 2019;

o on the amount of EUR 60,000 as from 11 January 2020;

o on the amount of EUR 60,000 as from 11 February 2020.

3. Any further claims of the Claimant are rejected.

4. The Respondent is ordered to pay a fine in the amount of CHF 20,000. The fine is to be paid within 30 days of notification of the present decision to FIFA to the following bank account with reference to case nr. 20-00579/pam:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

5. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount as mentioned under point 2.

6. The Respondent shall provide evidence of payment of the due amount as mentioned under point 2. as well as the fine mentioned under point 3. in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amount due as mentioned under point 2., plus interest as established above is not paid by the Respondent within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:

 1.

The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.

In the event that the payable amount as per in this decision is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

8. The costs of the proceeding in the amount of CHF 5,000 shall be borne by the Respondent (cf. note relating to the payment of procedural costs below). The Claimant is entitled to a reimbursement of the CHF 5,000 paid as advance of costs.

For the Players' Status Committee:

Emilio García Silvero

Chief Legal & Compliance Officer

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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