F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 21 February 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 21 February 2020,

in the following composition:

Clifford J. Hendel (USA & France), Deputy Chairman Pavel Pivovarov (Russia), member Tomislav Kasalo (Croatia), member

on the claim presented by the player,

Cristian Ionut Sapunaru, Romania,

represented by AFAN Romania

as Claimant

against the club,

Kayserispor Kulübü, Turkey

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 4 July 2017, the Romanian player, Cristian Ionut Sapunaru, (hereinafter: the Claimant), and the Turkish club, Kayserispor Kulübü, (hereinafter: the Respondent) concluded an employment contract valid during the football season 2017/2018 and 2018/2019 (hereinafter: the contract).

2. According to the contract, the Claimant was entitled to receive a total amount of EUR 910,000 payable as follows:

 “For 2017/2018 Football Season: 440.000,00-Euro (Four Hundred Forty Thousand Euros)

- 140.000,00-Euro (One Hundred Forty Thousand Euros) of the aforementioned amount is to be paid to the Player by the Club as an advance payment until 04.07.2017.

- 300.000,00-Euro (Three Hundred Thousand Euros) of the aforementioned amount is to be paid to the Player by the Club as the monthly salary in 10 (ten) equal instalments between the period August 2017 – May 2018. The monthly salaries are to be paid the last day of the relevant months. The Player accepts not to request any expenses with regard to – including but not limited with – the agency fee, flight tickets, etc besides abovementioned payments. All of the aforesaid expenses are included in abovementioned payments.

 For 2018/2019 Football Season: 450.000,00-Euro (Four Hundred Fifty Thousand Euros)

- 150.000,00-Euro (One Hundred Fifty Thousand Euros) of the aforementioned amount is to be paid to the Player by the Club as an advance payment until 30.07.2018.

- 300.000,00-Euro (Three Hundred Thousand Euros) of the aforementioned amount is to be paid to the Player by the Club as the monthly salary in 10 (ten) equal instalments between the period August 2018 – May 2019. The monthly salaries are to be paid the last day of the relevant months. The Player accepts not to request any expenses with regard to – including but not limited with – the agency fee, flight tickets, etc besides abovementioned payments. All of the aforesaid expenses are included in abovementioned payments.

3. Moreover, in accordance art. 6.3 of the contract,”The Player shall be paid in the amount of 10.000,00-Euro (Ten Thousand Euros) in relation with the 2017/2018 and 2018/2019 football season will be paid for each season for the expenses with regard to – including but not limited with – residence, car, flight tickets besides abovementioned payments”.

4. On 23 June 2019, the Claimant lodged a claim against the Respondent in front of FIFA for outstanding remuneration, claiming that the Respondent failed to pay to the Claimant a total amount of EUR 85,000, corresponding to the following:

- 5.000 Euros, partial salary related to the month of March 2019;

- 30.000 Euros, salary related to the month of April 2019;

- 30.000 Euros, salary related to the month of May 2019;

- 10.000 Euros, residence, car, flight tickets for the football season 2017/2018;

- 10.000 Euros, residence, car, flight tickets for the football season 2018/2019;

5. In its reply to the claim, the Respondent argued that the Claimant did not take all the payments into consideration, in particular, the following:

6. The Respondent deemed that during the Claimant’s stay with the Respondent, he was entitled to a total amount of EUR 910,000, but the Respondent actually paid the total amount of EUR 926,619.51 and therefore all the due amounts were paid and the Claimant’s claim shall be dismissed.

7. In his replica, the Claimant did not contest having received the abovementioned amounts, however, he deemed that the amounts paid in Turkish Lira were paid to the Claimant based on his participation and performance match bonuses.

8. The Claimant compared these payments to the payments received by a former colleague (Mr Tiago Jorge Oliveira Lopez) and argued that “it is easy to identify the identify of the values and dates of the payments made in TRY as match bonuses”. In order to explain the correlation of the bonuses and matches, the Claimant provided the following table:

9. Furthermore, the Claimant deemed that due to the fact that the Respondent paid “a total value bigger than the contract value” is proof that these amounts were match bonuses. The Claimant however amended his claim as he acknowledged that the Respondent paid a total amount of EUR 835,000 in regards to the contract and therefore the outstanding amount is EUR 75,000.

10. Finally, the Respondent argued that the payments made to another player are not relevant. In particular, the Respondent claimed that if a player wants a bonus, this would need to be stipulated in the employment agreement, but in this case, no such “bonus article” was included.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: Chamber or DRC) analysed whether it was competent to deal with the matter at stake. In this respect, the DRC took note that the present matter was submitted to FIFA on 23 June 2019 and decided on 21 February 2020. Taking into account the wording of art. 21 of the 2019 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 Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, the DRC is competent to deal with the matter at stake, which concerns an employment–related dispute with an international dimension between an Romanian player and a Turkish club.

3. Furthermore, the DRC analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the DRC confirmed that, in accordance with art. 26 par. 1 and par. 2 of the said Regulations and considering that the present claim was lodged in front of FIFA on 23 June 2019, the June 2019 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the Chamber acknowledged that, on 4 July 2017, the Claimant and the Respondent concluded an employment contract valid during the season 2017/2018 and 2018/2019, pursuant to which the Respondent undertook to pay to the Claimant a total amount of EUR 910,000.

6. Having recalled the above, the DRC observed that, the Claimant, in his claim, requested outstanding remuneration in the amount of EUR 85,000.

7. The DRC further noted that the Respondent deemed that the Claimant was entitled to a total amount of EUR 910,000, but the Respondent actually paid the total amount of EUR 926,619.51 and therefore all the due amounts were paid and the Claimant’s claim shall be dismissed.

8. In this regard, the Chamber noted that the Claimant, in his replica, did not contest having received the abovementioned amounts, however, he deemed that due to the fact that the club paid “a total value bigger than the contract value” is a proof that these amounts were match bonuses. Moreover, the Claimant amended his claim as he acknowledged that the club paid a total amount of EUR 835,000 in regards to the contract and therefore the outstanding amount due is equal to EUR 75,000.

9. The DRC further noted that the Respondent, in its duplica, stated that if a player wants to claim bonuses, these would need to be stipulated in the employment agreement, but in this case, no such “bonus article” was included.

11. In this context, the DRC turned its attention to the parties’ conflicting positions regarding the amounts allegedly paid by the Respondent to the Claimant and their nature, the DRC carefully studied the documentary evidence submitted by the parties. At this point, the Chamber also deemed it important to remind the parties of the general legal principle of burden of proof, as reflected in art. 12 par. 3 of the Procedural Rules, according to which “Any party claiming a right on the basis of an alleged fact shall carry the burden of proof”. In this particular case, the Chamber deemed that the Respondent bore the burden of proving that it indeed paid all the Claimant’s salaries in accordance with the contract.

10. In this respect, the DRC observed that the Respondent while claiming to have paid the Claimant more than he was actually due as per the employment contract, provided as evidence several receipts in Turkish Lyra, ranging approximately from EUR 2,000 to EUR 6,000 and paid in random dates. The Chamber also noted that the Claimant acknowledges having received some of these amounts – reducing his claim to EUR 75,000 – but claims they relate to bonuses.

11. In this context, the Chamber first deemed that since the contract establishes the payment of a monthly salary equal to EUR 30,000, these random payments in Turkish Lyra were rather unlikely to refer to salaries. The Chamber further noted that the Respondent allegedly paid more than it would be contractually obliged to, which is also an indication that these extraordinary amounts refer to bonuses, even though the latter are not specified in the contract. Furthermore, the Chamber also noted that the player provided evidence which indicated that these random payments in Turkish Lyra most likely refer to match bonuses, when comparing them to payments made to another player in a similar manner.

12. Bearing in mind the previous considerations, the DRC concurred that the Respondent was not able to discharge its burden of proving the payment of the player’s remuneration and must fulfil its obligations as per employment contract up until the date of it termination in accordance with the general legal principle of “pacta sunt servanda”.

13. In this respect, the Chamber highlighted that the Claimant’s claimed amount of EUR 75,000 remained outstanding, and must therefore be paid by the Respondent.

14. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the DRC decided to accept the Claimant’s claim and that the Respondent must pay the amount of EUR 75,000 to the Claimant, as outstanding remuneration.

15. The DRC concluded its deliberations in the present matter by accepting the claim of the Claimant.

16. Furthermore, taking into account the consideration under number II./3. above, the DRC 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.

17. In this regard, the 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.

18. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amount 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.

19. Finally, the DRC recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amount, in accordance with art. 24bis par. 3 of the Regulations.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Cristian Ionut Sapunaru, is accepted.

2. The Respondent, Kayserispor Kulübü, has to pay to the Claimant, within 45 days as from the date of notification of this decision the amount of EUR 75,000.

3. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amount mentioned under point 2. above.

4. The Respondent shall provide evidence of payment of the due amount in accordance with points 2. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

5. In the event that the amount due in accordance with point 2. 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 Respondent shall be banned 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 (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

6. The ban mentioned in point 5. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

7. In the event that the amount due in accordance with point 2. above 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 FIFA’s Disciplinary Committee for consideration and a formal decision.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the Dispute Resolution Chamber. Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

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). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer