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 17 January 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 17 January 2020,

in the following composition:

Omar Ongaro (Italy), Deputy Chairman

Stefano Sartori (Italy), member

Jose Luis Andrade (Portugal), member

on the claim presented by the player,

Tjaronn Chery, The Netherlands,

represented by Mr Pieter Hoogstad

as Claimant

against the club,

Kayserispor Kulübü, Turkey

as Respondent

regarding employment-related dispute arisen between the parties.

I. Facts of the case

1. On 28 July 2018, the Dutch player, Mr Tjaronn Chery (hereinafter: the player or the Claimant), concluded an employment contract (hereinafter: the contract) with the Turkish club Kayserispor Kulübü (hereinafter: the club or the Respondent), valid for the “entire 2018/2019 football season”, i.e. from 28 July 2018 until 30 June 2019. The player joined the club on loan, by means of which he was, inter alia, entitled to receive from the club a salary in the amount of EUR 700,000 as follows:

- EUR 100,000 as advance payment on 3 August 2018;

- EUR 50,000 as advance payment on 31 October 2018;

- EUR 50,000 as advance payment on 30 November 2018;

- EUR 500,000 in ten equal instalments of EUR 50,000, starting on 31 August 2018 until 30 May 2019.

2. Equally, the club had to pay to the player the sum of EUR 20,000 “for the expenses with regard to – including but not limited with – residence, car, flight tickets (...)” as follows:

- EUR 10,000 until 31 August 2018;

- EUR 10,000 until 31 January 2019.

3. Finally, the player was entitled to receive from the club several bonuses depending on the performances of the club. In particular, the player was entitled to receive EUR 1,000 “for each point of the Professional Football A Team of the Club in TFF Super League matches during the football season of 2018/2019 (...)”

4. On 2 July 2019, the player lodged a claim against the club in front of FIFA and requested the payment of the total amount of EUR 355,000, plus 5% interest p.a. “as from the successive days of the date that the [relevant] amounts were contractually due”.

5. In addition, the player requested FIFA to impose sanctions on the club in accordance with art. 12bis of the Regulations on the Status and Transfer of Players.

6. According to the player, the club had failed to pay him the following amounts:

- EUR 10,000, corresponding to expenses from 31 August 2018;

- EUR 50,000, corresponding to his December 2018 salary;

- EUR 50,000, corresponding to his January 2019 salary;

- EUR 10,000, according to the expenses from 31 January 2019;

- EUR 50,000, corresponding to his February 2019 salary;

- EUR 50,000, corresponding to his March 2019 salary;

- EUR 35,000 as “match points premiums from 16 April 2019”;

- EUR 50,000, corresponding to his April 2019 salary;

- EUR 50,000 corresponding to his May 2019 salary.

7. Equally, the player clarified that, by means of an email dated 24 April 2019, the club had agreed to pay him the outstanding amounts of EUR 305,000, by no later than 10 May 2019 and the sum of EUR 50,000, by no later than 30 May 2019.

8. In its reply, the club rejected the claim of the player, arguing that only the sum of EUR 246,096.56 had remained unpaid.

9. In this respect, the club argued that, in accordance with the contract, the player was entitled to receive the total amount of EUR 755,000 and had so far received the sum of EUR 509,903.44 as follows:

- EUR 100,000 on 3 August 2018;

- EUR 20,000 on 2 November 2018;

- EUR 50,000 on 13 November 2018;

- EUR 20,000 on 23 November 2018;

- EUR 70,000 on 14 December 2018;

- EUR 50,000 on 8 January 2019;

- EUR 40,000 on 6 March 2019;

- EUR 50,000 on 11 April 2019;

- EUR 60,000 on 7 May 2019;

- TRY 24,100 “equals to EUR 3,467.62” on 15 August 2018;

- TRY 13,300 “equals to EUR 1,740.83” on 31 August 2018;

- TRY 31,600 “equals to EUR 4,270.27” on 12 September 2018;

- TRY 30,440 “equals to EUR 3,943” on 13 September 2018;

- TRY 25,200 “equals to EUR 4,077.66” on 2 November 2018;

- TRY 26,750 “equals to EUR 4,342.53” on 4 January 2019;

- TRY 24,950 “equals to EUR 4,193.27” on 31 January 2019;

- TRY 13,750 “equals to EUR 2,314.81” on 6 February 2019;

- TRY 13,500 “equals to EUR 2,276.55” on 15 February 2019;

- TRY 13,400 “equals to EUR 2,233.33” on 20 February 2019;

- TRY 24,600 “equals to EUR 4,052.71” on 1 March 2019;

- TRY 26,125 “equals to EUR 3,964.33” on 26 April 2019;

- TRY 23,100 “equals to EUR 3,407.07” on 30 March 2019 and

- TRY 38,100 “equals to EUR 5,619.46” on 14 May 2019.

10. In support of its allegations, the club provided FIFA with the relevant proof of payments.

11. The player rejected the allegation of the club that he would have only been entitled to receive the sum of EUR 755,000, pointing out that the contract provided for a fixed amount of EUR 720,000 and that, additionally, the club had to pay him “bonuses and match points premium”.

12. According to the player, all payments received from the club in Turkish Liras, were payments “with regard to gained match points premium” and that he had received the total amount of EUR 49,903.44 “for those gained match points”, whereas this amount could not be deducted from his salary. The player further clarified in this regard that during the 2018/2019 season all the players of the club had received “more than the contractually agreed EUR 1.000 per point”.

13. In addition, the player pointed out that salary and bonuses had been paid in two different accounts by the club and that “these payments must be separated from each other and remain separate”.

14. Equally, the player acknowledged that, in the meantime, he had received from the club the additional sum of EUR 60,000.

15. In continuation, the player stressed that, “by mails dated 19 and 24 April 2019”, the parties had reached an agreement with regard to the payment of the sum that had been outstanding until now and which amounted to EUR 355,000.

16. From the player’s point of view, the aforementioned agreement was to be considered as a novum and therefore replaced all previous agreement.

17. “However and contrary to the consensus reached, after that day Kayserispor only paid the amounts ad EUR 3,964.22, EUR 3,407.07, EUR 5,619.46 and EUR 60,000 (...)”. As a result, the player deemed that the remaining amount of EUR 282,009.14 “plus interest (EUR 355,000 – EUR 3,964.33 – EUR 3,407.07 – EUR 5,619.46 – EUR 60,000)” was to be paid by the club.

18. Subsidiary and in the “unlikely event your DRC should decide that no agreement was reached between the parties about a new total payment schema on 24 April 2019 (...)”, the player requested the club to pay him the outstanding amount of EUR 260,000 plus interest (EUR 720,000 – EUR 460,000). In this context, the player pointed out once again that all payments made by the club in TRY corresponded to match point premiums.

19. “More subsidiary” and in case the “FIFA DRC should decide that despite the new agreement reached (...) and despite the structural payments to different IBAN’s for different amounts (salary vs premiums) all payments in Turkish liras should be taken into account with regards to the calculation of the total salary payment and expenses”, the player requested the payment of EUR 250,096.56 “plus interest” (EUR 760,000,00 – EUR 509,903.44).

20. As to the interests, the player clarified that they were to be paid “as from the successive days of the date that the amounts were contractually due by Kayserispor (...)”.

21. The club contested that the contract provided for the player to receive the sum of EUR 760,000, arguing that the total amount was of EUR 755,000.

22. Equally, the club contested the allegation of the player that the amounts paid to the latter in TRY would correspond to bonuses. According to the club, it had made several payments in TRY because it was undergoing some financial difficulties and therefore “as soon as the money passes to the club’s coffers (...) the Club tries to pay small/different amounts to the players. By this reason some of the payments made in Turkish Lira in different amounts”.

23. In addition, the club alleged having made the additional payment of EUR 29,000 to the player on 10 September 2019.

24. As a result, the club deemed that the total amount of EUR 538,903.44 had so far been paid to the player and therefore such amount was to be deducted from the outstanding remuneration due to the latter.

25. The player contested having received the additional sum of EUR 29,000 from the club arguing that he did not know the IBAN to which the payment in question had been made.

26. According to the player, the same IBAN had allegedly already been used to wire him the sum of EUR 100,000 on 3 August 2018 as per the payment receipts enclosed by the club although he had received such amount cash.

27. Hence, the club requested FIFA to disregard the relevant alleged payment and reiterated the content of his latest request.

28. Nevertheless, and in case the FIFA DRC would consider that the sum of EUR 29,000 had indeed been paid by the club, the player deemed that the club “should be obliged to ensure and achieve that this amount is transferred in full” to his actual IBAN or to the account of his lawyer “within 30 days as from the date of notification of the decision”.

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. In this respect, it took note that the present matter was submitted to FIFA on 2 July 2019. 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. With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1 of the Procedural Rules states that the Dispute Resolution Chamber shall examine its jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and Transfer of Players (edition January 2020). In accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the aforementioned Regulations, the Dispute Resolution Chamber would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Dutch player and a Turkish club.

3. Subsequently, the Chamber 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 Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions June 2019, October 2019 and January 2020) and, on the other hand, to the fact that the present claim was lodged on 2 July 2019. The Dispute Resolution Chamber concluded that the June 2019 version 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 Chamber and the applicable regulations having been established, and entering into the substance of the matter, the Chamber started by acknowledging the above-mentioned facts as well as the documentation contained in the 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 the assessment of the matter at hand.

5. In this respect, the Chamber observed that the parties had signed an employment contract on 28 July 2018, in accordance with which the player was entitled to receive, inter alia, the amount of EUR 700,000 as total remuneration for the term of the contract, payable as follows: (i) EUR 100,000 as advance payment on 3 August 2018; (ii) EUR 50,000 as advance payment on 31 October 2018; (iii) EUR 50,000 as advance payment on 30 November 2018; (iv) EUR 500,000 in ten equal instalments of EUR 50,000, starting on 31 August 2018 until 30 May 2019.

6. Furthermore, the Chamber noted that the player was as well entitled to the sum of EUR 20,000 for further expenses, payable as follows: (i) EUR 10,000 until 31 August 2018 and (ii) EUR 10,000 until 31 January 2019.

7. In addition, the Chamber observed that the club had to pay the player several bonuses depending on the performances of the team. In particular, the Chamber noted that the player was entitled to receive EUR 1,000 “for each point of the Professional Football A Team of the Club in TFF Super League matches during the football season of 2018/2019 (...)”.

8. In continuation, the Chamber noted that the Claimant alleged that the Respondent failed to pay the alleged outstanding amount of EUR 355,000, calculated as:

- EUR 10,000, corresponding to expenses from 31 August 2018;

- EUR 50,000, corresponding to his December 2018 salary;

- EUR 50,000, corresponding to his January 2019 salary;

- EUR 10,000, according to the expenses from 31 January 2019;

- EUR 50,000, corresponding to his February 2019 salary;

- EUR 50,000, corresponding to his March 2019 salary;

- EUR 35,000 as “match points premiums from 16 April 2019”;

- EUR 50,000, corresponding to his April 2019 salary;

- EUR 50,000 corresponding to his May 2019 salary.

9. Furthermore, the Chamber took note of an email dated 24 April 2019, in which the club had agreed to pay the player the outstanding amounts of EUR 305,000 by no later than 10 May 2019, and the sum of EUR 50,000 by no later than 30 May 2019.

10. The Chamber noted that the Claimant asked to be awarded the payment of the total amount of EUR 355,000 plus 5% interest p.a. “as from the successive days of the date that the [relevant] amounts were contractually due”.

11. Equally, the Chamber took note of the reply of the Respondent, which asserted that the player was entitled to receive the total amount of EUR 755,000 and only the sum of EUR 246,096.56 had remained unpaid.

12. In this regard, the Chamber duly took note that the Respondent provided documentation to attest of the alleged payments of EUR 509,903.44 as follows:

- EUR 100,000 on 3 August 2018;

- EUR 20,000 on 2 November 2018;

- EUR 50,000 on 13 November 2018;

- EUR 20,000 on 23 November 2018;

- EUR 70,000 on 14 December 2018;

- EUR 50,000 on 8 January 2019;

- EUR 40,000 on 6 March 2019;

- EUR 50,000 on 11 April 2019;

- EUR 60,000 on 7 May 2019;

- TRY 24,100 “equals to EUR 3,467.62” on 15 August 2018;

- TRY 13,300 “equals to EUR 1,740.83” on 31 August 2018;

- TRY 31,600 “equals to EUR 4,270.27” on 12 September 2018;

- TRY 30,440 “equals to EUR 3,943” on 13 September 2018;

- TRY 25,200 “equals to EUR 4,077.66” on 2 November 2018;

- TRY 26,750 “equals to EUR 4,342.53” on 4 January 2019;

- TRY 24,950 “equals to EUR 4,193.27” on 31 January 2019;

- TRY 13,750 “equals to EUR 2,314.81” on 6 February 2019;

- TRY 13,500 “equals to EUR 2,276.55” on 15 February 2019;

- TRY 13,400 “equals to EUR 2,233.33” on 20 February 2019;

- TRY 24,600 “equals to EUR 4,052.71” on 1 March 2019;

- TRY 26,125 “equals to EUR 3,964.33” on 26 April 2019;

- TRY 23,100 “equals to EUR 3,407.07” on 30 March 2019 and

- TRY 38,100 “equals to EUR 5,619.46” on 14 May 2019.

13. Along this line, the Chamber observed that the Claimant contested that the total amount to be received by him amounted to EUR 755,000. The Chamber took note of Claimant’s argument that the contract provided for bonuses on the top of the fixed amount of EUR 720,000. According to the Claimant, the amount of EUR 49,903.44 were therefore bonuses, paid separately on two different accounts.

14. The DRC took note that the Respondent, on the other hand, contested that those payments were related to bonus payments and that those respective payments were made in TRY, solely because the Respondent was in financial difficulties and tried, at least partially, to accommodate the Claimant with salary payments.

15. Turning its attention on the question as to whether the payments in TRY were indeed bonuses and not salaries, as alleged by the Claimant, the Chamber recalled that the contract provides for the payment of match bonuses and in this context, the Chamber established that – given to lack of evidence provided by the club as to the contrary - these small amounts paid by the Respondent meant for that concept.

16. Subsequently, the Chamber recalled the email dated 24 April 2019, in which the club had agreed to pay the player the outstanding amounts of EUR 305,000 by no later than 10 May 2019, and the sum of EUR 50,000 by no later than 30 May 2019. In this context, the Chamber took note of the Claimant’s argument that such agreement shall be considered as a novum, replacing all previous agreements.

17. With regard to the above-mentioned agreement, the Chamber concluded that there is a clear exchange of e-mails between the legal representatives of the parties, in which the Respondent acknowledges the outstanding amount of EUR 355,000 towards the Claimant, in order to suspend the termination of the contract of the latter.

18. Furthermore, the DRC duly noted that after the conclusion of the above-mentioned agreement, the Claimant acknowledged the payment of the following amounts: (i) EUR 3,964.22; (ii) EUR 3,407.07; (iii) EUR 5,619.46; and (iv) EUR 60,000.

19. In this context, the Chamber took note that on 10 September 2019, the Respondent allegedly made a payment of EUR 29,000 to the Claimant, which the latter contested.

20. That said, the DRC considered the evidence on file with regard of the alleged payment of EUR 29,000. The Chamber concluded that since the amount was paid to a Turkish account different to the one used previously and, moreover, there is no evidence that the Claimant received such amount, the payment cannot be taken into consideration.

21. In view of the above, recalling that the Respondent acknowledged a debt of EUR 355,000 and the Claimant acknowledged the payment of EUR 72,990.75, the DRC decided consequently that, in accordance with the general legal practice of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding remuneration in the total amount of EUR 282,009.14.

22. In addition, taking into consideration the claim lodged by the Claimant, as well as the constant practice of the DRC, the Chamber decided to award the Claimant interest at the rate of 5% p.a. as from 31 May 2019, until the date of effective payment.

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

24. In this regard, the Chamber established that, in virtue of the aforementioned provision, it has competence to impose a sanction on the club. More in particular, the DRC pointed out that, against clubs, the sanction shall consist in a ban 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.

25. Therefore, bearing in mind the above, the DRC decided that, in the event that the club does not pay the amount due to the player within 45 days as from the moment in which the player, following the notification of the present decision, communicates the relevant bank details to the club, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.

26. Finally, the Chamber recalled that the above-mentioned sanction 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.

27. The Chamber concluded its deliberations by rejecting any further claim lodged by the Claimant.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Tjaronn Chery, is partially accepted.

2. The Respondent, Kayserispor Kulübü, has to pay to the Claimant outstanding remuneration in the amount of EUR 282,009.14, plus 5% interest p.a. as of 31 May 2019 until the date of effective payment.

3. Any further claim lodged by the Claimant is rejected.

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

5. The Respondent shall provide evidence of payment of the due amounts in accordance with point 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).

6. In the event that the amount due plus interest 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).

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

8. In the event that the aforementioned sum plus interests 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 DRC. 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 art. 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.

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

Court of Arbitration for Sport

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1012 Lausanne

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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