F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 13 November 2020

Decision of the

Dispute Resolution Chamber

passed on 13 November 2020

regarding an employment-related dispute concerning the player Cristian Tanase

COMPOSITION:

Omar Ongaro (Italy), Deputy Chairman

Stijn Boeykens (Belgium), member

Daan de Jong (Netherlands), member

CLAIMANT:

Cristian Tanase, Romania

Represented by Mr Rıza Köklü

RESPONDENT:

Giresunspor Kulübü Dernegi, Turkey

Represented by Mr Ercan Sevdimbaş

I. Facts

1. On 12 January 2019, the parties concluded an employment contract valid as from 12 January 2019 until 31 May 2020.

2. According to 6 of the contract, the player was entitled to the following net amounts:

“Art. 6.1. The Salary Of The Player

For 2018/2019 Football Season: 125.000,00-EURO (One Hundred and Fifteen Thousand Euros)

The aforementioned amount is to be paid to the Player· by the Club on the below mentioned dates:

30.000,00-EUR on the signature date,

10.000,00-EUR as advance payment,

17.000,00-EUR on the 31th of January, 2019

17.000,00-EUR on the 28th of February, 2019,

17.000,00-EUR on the 31th of March, 2019,

17.000,00-EUR on the 30th of April, 2019,

17.000,00-EUR on the 31th of May, 2019,

► In case of the Club entitles to promote to Super League, the Club will pay the Player in the amount of 70.000,00-EUR according to the match appearance number of the Player (pro-rata temporis)

For 2019/2020 Football Season: 255.000,00-EURO (Two Hundred and Fifty Five Thousand Euros)

The aforementioned amount is to be paid to the Player by the Club on the below mentioned dates:

-55.000,00-EUR as advance payment

-20.000,00-EUR on the 31th of August, 2019,

-20.000,00-EUR on the 30th of September, 2019,

-20.000,00-EUR on the 31th of October, 2019,

-20.000,00-EUR on the 30th of November, 2019,

-20.000,00-EUR on the 31th of December, 2019,

-20.000,00-EUR on the 30th of January, 2020,

-20.000,00-EUR on the 28th of February, 2020,

-20.000,00-EUR on the 31th of March, 2020,

-20.000,00-EUR on the 30th of April, 2020,

-20.000,00-EUR on the 31th of May, 2020”

4. Art. 1.3 of the contract stipulated the following:

1.3. The Club shall pay success bonuses to the Player, which will be set by the Club on its own discretion. The Player is entitled to get bonus that shall not be less than other players in the team.”

3. The player did not send any default notice.

4. According to the club, on 7 April 2020, it imposed a fine to the player in the amount of USD 20,000, due to the following reasons:

“fine of USD 20,000 is imposed to the Player in accordance with clause f and n of Article 5 of the contract dated 12.01.2019 on the grounds that you travelled to abroad without approval of the Club including his annual leaving; it is unanimously decided that this fine shall be deducted from the receivables that will arise in the Club under the contract and that it shall be notified to the TFF and the relevant parties.”

5. On 29 July 2020, the player lodged a claim before FIFA against the Respondent for outstanding remuneration, and requested the payment of the total amount of EUR 190,000 net, plus 5% interest p.a. as from the due dates, detailed as follows:

EUR 10,000, for the remaining part of August 2019;

EUR 180,000 = 20,000*9, for his entire remuneration from September 2019 until May 2020

6. In its reply, the Respondent underlined that the player was contractually entitled to EUR 380,000 during the entire period, and explained that it paid him the amount of EUR 233,871, as follows:

► EUR 30.000.-on signature date 12.01.2019,

► EUR 10.000.-on 14.01.2019,

► EUR 500.-on 25.01.2019,

► EUR 750.-on 14.02.2019,

► EUR 1.090.-on 05.03.2019,

► EUR 710.-on 04.04.2019,

► EUR 10.000.-on 12.04.2019,

► EUR 20.000.-on 15.05.2019,

► EUR 35.000.-on 27.06.2019,

► EUR 20.000.-on 19.08.2019,

► EUR 1.350.-on 17.10.2019,

► EUR 1.030.-on 01.11.2019,

► EUR 10.000.-on 04.12.2019,

► EUR 30.000.-on 27.12.2019,

► EUR 25.000.-on 10.06.2020 (20.07.2020),

► EUR 25.000.-on 01.07.2020,

► TRY 4.500.-(EUR 710.-in exchange rate on the date of payment) on 08.11.2019,

► TRY 9.000.-(EUR 1.428-in exchange rate on the date of payment) on 20.11.2019,

► TRY 4.500.-(EUR 710.-in exchange rate on the date of payment) on 28.11.2019,

► TRY 13.500.-(EUR 2.117.-in exchange rate on the date of payment) on 06.12.2019,

► TRY 6.750.-(EUR 1.032.-in exchange rate on the date of payment) on 20.01.2020,

► TRY 6.750.-(EUR 1.033-in exchange rate on the date of payment) on 29.01.2020,

► TRY 4.500.-(EUR 682.-in exchange rate on the date of payment) on 04.02.2020,

► TRY 13.500.-(EUR 1.988-in exchange rate on the date of payment) on 04.03.2020,

► TRY 18.000.-(EUR 2.569-in exchange rate on the date of payment) on 13.03.2020,

► TRY 4.500.-(EUR 586-in exchange rate on the date of payment) on 19.06.2020,

► TRY 4.500.-(EUR 586-in exchange rate on the date of payment) on 26.06.2020,

7. In addition, the Respondent explained that it imposed a fine to the player in the amount of USD 20,000 “that correspond to EUR 18,395”.

8. Furthermore, the Respondent referred to the economic effects of the COVID-19 pandemic, as well as to the economic and political crisis in Turkey, which caused a devaluation of its local currency. Because of this, the Respondent requested “to make a reduction from the receivables of the Claimant according to Covid-19 force majeure situation”.

9. The player was invited to comment on the respondent’s reply.

10. According to the player, the payment receipts provided by the club are related to discretionary bonuses in accordance with art. 1.3 of the contract, and indicating, inter alia, the following:

- EUR 500.- dated 25 January 2019 is a payment relating to the Eskiehirspor match played away on 20 January 2019 with 0-0 draw,

- EUR 750.- dated 14 February 2019 is a payment relating to the Tetis Yapi Elazigspor match played away on 3 February 2019 with 0-0 draw,

- EUR 1.090.- dated 5 March 2019 is a payment relating to the Adanaspor A.S. match played away o 1 March 2019 with 1-1 draw,

- EUR710.- dated 4 April 2019 is a payment relating to the Bahkesir Baltok match played away on 3 April 2019 with 1-1 draw

11. The player further observed that, except the first two payments, all the payments are made in Turkish Liras “which is unfortunately a common tactic by several clubs while attempting to reduce their obligations towards players.”

12. The player further underlined that said payments are only made if he was in the squad and after the home and/ or away wins and away draw matches. Moreover, according to the player, said payments are determined by taking in consideration of the importance and result of the matches and by identifying whether the Player is within first 11, in the squad and/ or joining the match later.

13. In addition, the player noted that three of the payment receipts already reflect the fact that those payments are bonus payments.

14. Furthermore, according to the player, the alleged payments do not comply with the payments indicated in the Employment Contract.

15. The player further referred to the Decision of the FIFA Dispute Resolution Chamber dated 21 February 2020 (Player Cristian Ionut Sapunaru, Romania / Kayserispor Kulübü, Turkey, as a precedent concerning bonus payments.

16. As a result, the player insisted to be awarded with the total outstanding amount of EUR 190,000 net.

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. Taking into account the wording of art. 21 of the June 2020 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 Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural Rules and emphasised that, in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, the Dispute Resolution Chamber is competent to deal with matters which concern employment-related disputes with an international dimension between players and clubs, such as the present one, which involves a Romanian player and a Turkish club.

3. In continuation, the Dispute Resolution Chamber analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Dispute Resolution Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering that the date when the claim was lodged, the June 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4. With the above having been established, the Dispute Resolution Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the Dispute Resolution Chamber emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the Chamber noted that, on 12 January 2019, the parties concluded an employment contract valid as from the date of signature until 31 May 2020, with the remuneration mentioned in point I. 2 above.

6. Subsequently, the Chamber noted that the Claimant lodged a claim before FIFA against the Respondent for outstanding remuneration, by means of which he requested the payment of the following amounts:

- EUR 10,000, for the remaining part of August 2019;

- EUR 180,000 = 20,000*9, for his entire remuneration from September 2019 until May 2020

7. Conversely, the Chamber took note of the Respondent’s reply, according to which it admitted the player was contractually entitled to EUR 380,000 during the entire period, from which it paid him the amount of EUR 233,871.

8. As a result, the Chamber understood that the Respondent partially admitted its debt towards the Claimant. Yet, considering the documentation provided by the Respondent (cf. point I. 6 above), the Chamber therefore understood that the matter at stake fundamentally consists in determining, on the basis of the contract as well as the evidence gathered during the course of the investigation, the exact quantum of debt due by the Respondent towards the Claimant.

9. Within this context, the Chamber reminded the parties of the contents of 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”, as well as to art 12 par. 7, according to which “evidence shall be considered with free discretion, taking into account the conduct of the parties during the proceedings, especially a failure to comply with a personal summons, a refusal to answer questions and the withholding of requested evidence.”

10. In this respect, the Chamber first noted that the club itself admitted that, during the entire duration of the contract (January 2019 until May 2020), the player was entitled to a total amount of EUR 380,000, of which it claimed having paid EUR 233,871. The Chamber also noted that, following the Respondent’s documentation, the amount paid to the player were performed in an irregular manner and not exactly following the payment schedule that was agreed in the contract.

11. In other words, the Chamber observed that, according to the Club, at least EUR 146,129 are outstanding.

12. In view of the above, the Chamber considered the total amount due as per the contract (EUR 380,000), and, after carefully observing the documentation on file, accepted that the Respondent sufficiently proved that it paid via wire transfer the total amount of EUR 195,430. For the sake of clarity, the Chamber noted that it could only admit as acceptable evidence in this matter, documents proving a wire transfer in EUR (as agreed in the contract), but not any other document providing payments in Turkish lira (TRY), or other documents such as promissory notes, which do not sufficiently establish that the Claimant received the relevant amounts.

13. As a result, the Chamber determined that the outstanding amount arising from the contract amounts to EUR 195,430.

14. Moreover, and for the sake of completeness, the Dispute Resolution Chamber considered that, in line with its well-established jurisprudence, a club’s financial difficulties cannot be considered a valid justification for non-compliance with its essential contractual obligations deriving from the signature of a binding agreement. Consequently, the Dispute Resolution Chamber decided that this argumentation of the Respondent could be followed on this point.

15. Consequently, in strict application of the principle of pacta sunt servanda, the Dispute Resolution Chamber established that the Respondent has to pay to the Claimant, the total outstanding amount of EUR 195,430, as agreed in the contract.

16. In addition, taking into account the request of the Claimant as well as the longstanding jurisprudence in this regard, the Dispute Resolution Chamber decided to award 5% interest p.a. over said amount as from the due dates. Taking into account the irregular form of payment performed by the Respondent, the Chamber specified that said interest would be payable as follows:

- 5% interest p.a. over the amount of EUR 4,570 as from 1 September 2019 (part of salary August 19) - 5% interest p.a. over the amount of EUR 20,000 as from 1 October 2019 (salary of September 19)

- 5% interest p.a. over the amount of EUR 20'000 as from 1 November 2019 (salary of October 19)

- 5% interest p.a. over the amount of EUR 20,000 as from 1 December 2019 (salary of November 19)

- 5% interest p.a. over the amount of EUR 20'000 as from 1 January 2020 (salary of December 19)

- 5% interest p.a. over the amount of EUR 20,000 as from 1 February 2020 (salary of January 20)

- 5% interest p.a. over the amount of EUR 20'000 as from 29 February 2020 (salary of February 20)

- 5% interest p.a. over the amount of EUR 20,000 as from 1 April 2020 (salary of March 20)

- 5% interest p.a. over the amount of EUR 20'000 as from 1 May 2020 (salary of April 20)

- 5% interest p.a. over the amount of EUR 20,000 as from 1 June 2020 (salary of May 20)

17. Furthermore, taking into account the previous considerations, the Dispute Resolution 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.

18. In this regard, the Dispute Resolution 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.

19. Therefore, bearing in mind the above, the Dispute Resolution Chamber 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 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.

20. Finally, the Dispute Resolution Chamber 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. 3 of the Regulations.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Cristian Tanase, is partially accepted.

2. The Respondent, Giresunspor Kulübü Dernegi, has to pay to the Claimant, the following amount:

- EUR 184,570 net as outstanding remuneration plus interest as follows:

- 5% interest p.a. over the amount of EUR 4,570 as from 1 September 2019 5% interest p.a. over the amount of EUR 20,000 as from 1 October 2019

- 5% interest p.a. over the amount of EUR 20,000 as from 1 November 2019

- 5% interest p.a. over the amount of EUR 20,000 as from 1 December 2019

- 5% interest p.a. over the amount of EUR 20,000 as from 1 January 2020

- 5% interest p.a. over the amount of EUR 20,000 as from 1 February 2020

- 5% interest p.a. over the amount of EUR 20,000 as from 29 February 2020

- 5% interest p.a. over the amount of EUR 20,000 as from 1 April 2020

- 5% interest p.a. over the amount of EUR 20,000 as from 1 May 2020

- 5% interest p.a. over the amount of EUR 20,000 as from 1 June 2020

3. Any further claims of the Claimant are rejected.

4. 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.

5. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount due, 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.

For the Dispute Resolution Chamber:

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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