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 5 November 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 5 November 2019,

in the following composition:

Geoff Thompson (England), Chairman

Joaquim Evangelista (Portugal), member

Roy Vermeer (The Netherlands), member

Todd Durbin (USA), member

Juan Bautista Mahiques (Argentina), member

on the claim presented by the player,

Oscar Rene Cardozo Marin, Paraguay

represented by Mr Ariel Reck

as Claimant

against the club,

Trabzonspor Futbol, Turkey

represented by Mr Nazim Burçin Çelen

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 6 August 2014, the Claimant and the Respondent (hereinafter jointly referred to as the Parties) concluded an employment contract (hereinafter: the contract), valid as from the date of signature until 31 May 2017.

2. Pursuant to art. V of the contract, the Claimant was inter alia entitled to a salary of EUR 5,000,000 as follows:

a) EUR 2,500,000 for the 2014/2015 season

b) EUR 2,500,000 for the 2015/2016 season

3. On 31 August 2016, the Parties signed a termination agreement.

4. As per art. 3 of the termination agreement, the Respondent undertook to pay to the Claimant the amount of EUR 1,900,000, as follows:

a) EUR 650,000 on 2 September 2016

b) EUR 300,000 on 15 October 2016

c) EUR 950,000 on 15 February 2017

5. On 21 March 2017, the Parties signed a “Settlement Agreement” (hereinafter: first settlement agreement).

6. According to art. 3 of the first settlement agreement, the Respondent committed itself to pay to the Claimant the amount of EUR 1,200,000, as follows:

a) EUR 525,000 on 21 March 2017

b) EUR 225,000 on 28 April 2017

c) EUR 225,000 on 31 May 2017

d) EUR 225,000 on 30 June 2017

7. On 31 August 2017, the Parties signed another “Settlement Agreement” (hereinafter: second settlement agreement).

8. Pursuant to art. 3.1 of the second settlement agreement, the Respondent undertook to pay to the Claimant EUR 675,000, as follows:

a) EUR 225,000 on 27 September 2017

b) EUR 225,000 on 28 November 2017

c) EUR 225,000 on 28 December 2017

9. Art. 3.3 of the second settlement agreement read as follows: “[The Club] agrees to provide promissory notes to the attorney to guarantee the remaining three payments […] Failure of the payment of any of these documents, gives the right to the player to claim to FIFA and charge corresponding interests”.

10. On 4 May 2018, the Claimant lodged a claim against the Respondent in front of FIFA under art. 12bis of the Regulations on the Status and Transfer of Players, requesting EUR 675,000, “plus 5% interest p.a. as of the respective due dates, in accordance with […] the jurisprudence of FIFA”.

11. On 7 August 2018, the Respondent informed FIFA that it had paid to the Claimant the amounts of EUR 350,000 on 21 May 2018 and EUR 325,000 on 2 July 2018 respectively.

12. In this regard, also on 7 August 2018, the Claimant confirmed that it had received said amounts from the Respondent, but denied having reached an amicable settlement with the latter. Accordingly, the Claimant informed FIFA that he requested the following amounts:

a) EUR 8,887.50, “with respect to the payment with due date 27.09.2017”

b) EUR 7,312.50, “with respect to the payment with due date 28.11.2017”

c) EUR 6,075, “with respect to the payment with due date 28.12.2017”.

13. In his claim, the Claimant considered that the due amounts were paid to him after the deadline and as such, he should be entitled to the interests. The Claimant argued that his initial claim was not for interests only and that the Respondent had only decided to make the relevant payments following the submission of the claim before FIFA.

14. According to the Claimant, should the Respondent be allowed to not pay the interests, this would imply that the latter “could simply pay the due amounts when it wants without suffering any consequences, as long as [it pays] before [FIFA’s] decision” and that “the club would be exonerated of [paying] interests, generating an improper benefit, as well as a loss for the player”.

15. In its reply, the Respondent commented upon the Claimant’s request for interests by stating that the Claimant “can no longer assert interest claims”.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber took note that the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018, hereinafter: Procedural Rules) were applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

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 conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2018), it was competent to decide on the present matter, which concerns an employment-related dispute with an international dimension between a Paraguayan player and a Turkish club.

3. In continuation, the Chamber 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 Players (edition June 2019), and considering that the present claim was lodged on 4 May 2018, the January 2018 edition of said regulations (hereinafter: Regulations) were applicable to the matter at hand as to the substance.

4. The competence of the Dispute Resolution Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, it started by acknowledging all the above-mentioned facts, the arguments and the documentation submitted by the Claimant and the Respondent. 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. First, the Dispute Resolution Chamber noted that the parties entered into an employment contract valid as from 6 August 2014 until 31 May 2017, according to which the Respondent undertook to pay the Claimant a total salary of EUR 5,000,000.

6. Second, the Chamber took note of the termination agreement signed between the Parties on 31 August 2016, according to which the Claimant was entitled to EUR 1,900,000, to be paid in three installments.

7. Third, the Chamber acknowledged the conclusion of the first settlement agreement on 21 March 2017, whereby the Respondent undertook to pay the total amount of EUR 1,200,000 to the Claimant, in four installments.

8. The Chamber also took note of the second settlement agreement signed by the Parties on 31 August 2017, according to which the Claimant was entitled to EUR 675,000, in three installments. In this context, the Chamber acknowledged the content of art. 3.3 of the second settlement agreement.

9. Fourth, the Dispute Resolution Chamber took note of the Claimant’s acknowledgement of receipt of EUR 350,000 and EUR 325,000, which were paid by the Respondent in the course of the present proceedings, i.e. on 21 May 2018 and 2 July 2018 respectively. In this regard, the Chamber further noted the player’s prayers for relief in the amount of EUR 22,275, corresponding to outstanding interests.

10. In these circumstances, the Chamber emphasised that the Claimant submitted his claim before the amounts of EUR 350,000 and 325,000 were paid by the Respondent. The Chamber also highlighted that in his initial claim, the Claimant already requested interest on the total amount of EUR 675,000, as from the respective due dates.

11. Moreover, the Chamber observed that it was undisputed that the payments made by the Respondent were long overdue. Consequently, the Dispute Resolution Chamber decided to take into consideration the Claimant’s request for interest, at the rate of 5% p.a., which formed an integral part of his original claim.

12. The Chamber also noted that the player’s request for interest was based on art. 3.3 of the agreement, which read as follows: “[The Club] agrees to provide promissory notes to the attorney to guarantee the remaining three payments […] Failure of the payment of any of these documents, gives the right to the player to claim to FIFA and charge corresponding interests”.

13. Considering the wording of the aforementioned article, the Dispute Resolution Chamber decided that the interest of 5% p.a. to be paid by the Respondent on the two late payments would start running as from the date of the claim, i.e. 4 May 2018.

14. At this point, the Chamber reminded that the first partial payment of EUR 350,000 was made by the Respondent on 21 May 2018. Accordingly, the Dispute Resolution Chamber decided that interest for late payment at the rate of 5% p.a. would apply on the total amount of EUR 675,000 until the date of the partial payment, i.e. 21 May 2018.

15. Taking into consideration that the outstanding amount of EUR 325,000 was paid to the Claimant on 2 July 2018, the Dispute Resolution Chamber concluded that interest at the rate of 5% p.a. would apply on said amount until the date of effective payment, i.e. 2 July 2018.

16. In view of the above, the Dispute Resolution Chamber decided that the Respondent must pay to the Claimant, within 30 days as from the notification of this decision, interest for late payment at the rate of 5% p.a., on the amounts of EUR 675,000 as from 4 May 2018 until 21 May 2018 and EUR 325,000 as from 4 May 2018 until 2 July 2018.

17. Furthermore, the Chamber pointed out that in the event that the amount due was not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

18. Finally, the Dispute Resolution Chamber established that any further claim lodged by the Claimant was rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Oscar Rene Cardozo Marin, is partially accepted.

2. The Respondent, Trabzonspor Futbol, has to pay to the Claimant, within 30 days as from the date of notification of this decision, interest for late payment at the rate of 5% p.a. as follows:

a) On the amount of EUR 675,000 as from 4 May 2018 until 21 May 2018;

b) On the amount of EUR 325,000 as from 4 May 2018 until 2 July 2018.

3. In the event that the amount due to the Claimant in accordance with the above-mentioned point 2. is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

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

5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received.

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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 relating to the motivated decision (legal remedy):

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.

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

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1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

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e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer