DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - CONTROVERSIE DI LAVORO

• Data decisione: 20 gennaio 2021 • Stagione sportiva: 2020/2021

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 20 January 2021

Decision of the

Dispute Resolution Chamber

Passed on 20 January 2021,

regarding an employment-related dispute concerning the player Jasmin Trtovac

COMPOSITION:

Omar Ongaro (Italy), Deputy Chairman

Tomislav Kasalo (Croatia), member

José Luis Andrade (Portugal), member

CLAIMANT:

Jasmin Trtovac, Serbia

Represented by Mr. Mumin Adigüzel

RESPONDENT:

Menemen Belediyespor, Turkey Represented by Mr. Ercan Seydimbas

I. FACTS OF THE CASE

1. On 8 August 2019, the Serbian player, Jasmin Trtovac (hereinafter “the Player”), and the Turkish club, Menemen Belediyespor (hereinafter “the Club”) (jointly referred to as “the parties”) concluded an employment contract (hereinafter: “the Contract”), valid as from the date of its signature until 30 June 2020.

2. In accordance with clause 6.1 of the Contract, the Club undertook to pay to the Player the following amounts:

a. EUR 20,000 on 15 August 2019;

b. EUR 8,000 by 15 September 2019;

c. EUR 8,000 by 15 October 2019;

d. EUR 8,000 by 15 November 2019;

e. EUR 8,000 by 15 December 2019;

f. EUR 8,000 by 15 January 2020;

g. EUR 8,000 by 15 February 2020;

h. EUR 8,000 by 15 March 2020;

i. EUR 8,000 by 15 April 2020;

j. EUR 8,000 by 15 May 2020;

k. EUR 8,000 by 15 June 2020.

3. Additionally, Clause 6.1. of the Contract states, inter alia:

“The Club shall pay the Player in the total amount of 5,000 EUR for once in the 2019/2020 football season corresponding to rental payment and an appropriate car for Player”.

4. On 13 May 2020, the Respondent made an invitation to the Claimant to agree to apply a reduction of his salary at the rate of 30% from the contractual payment, due to the Turkish crisis and the Covid-19 pandemic.

5. According to the information available in the Transfer Matching System (TMS), the season in Turkey was originally scheduled to end on 31 May 2020.

6. On 5 June 2020, the Claimant put the Respondent in default of payment of the amount of EUR 52,800, corresponding to the outstanding salaries related to the months of December 2019, January, February, March, April, May, June 2020 due to the player; granting the Respondent a 10 days’ deadline to remedy the default. However, to no avail.

7. On 12 June 2020, the Respondent send a letter to the Claimant referring to the default notice sent above, informing the Claimant of some disciplinary sanctions had been taken against him and making an offer of EUR 25,000 to settle the dispute.

8. In his claim, the Claimant “kindly claim by means of FIFA that the players' due outstanding credits 52.800.EUR from the clubs with interest p.a minimum %5 from due the date of each salaries from respondent club”.

9. In the default notice provided, the Claimant argued that, despite him complying with his contractual obligations, the Club had failed to pay his monthly salaries as from December 2019 onwards. In his claim, the Claimant requested to be awarded the total amount of EUR 52,800, plus 5% interest p.a. as from the due dates until the date of effective payment, as follows:

a. EUR 4,800 corresponding to the unpaid part of the salary of December 2019;

b. EUR 8,000 corresponding to the salary of January 2020;

c. EUR 8,000 corresponding to the salary of February 2020;

d. EUR 8,000 corresponding to the salary of March 2020;

e. EUR 8,000 corresponding to the salary of April 2020;

f. EUR 8,000 corresponding to the salary of May 2020;

g. EUR 8,000 corresponding to the salary of June 2020.

10. In its answer, the Respondent requested FIFA to dismiss the case; consider the amounts paid and good faith of the Respondent while evaluating the Claimant requests and according to the bank receipts provided and setoff the mentioned amount from the Claimant's requests; make a reduction from the receivables of the Claimant according to Covid19 force majeure situation and finally, grant legal costs to the Respondent.

11. The Respondent stated having paid to the Claimant between 9 August 2019 until 27 March 2020 via several bank transfers made in both Euros and Turkish Liras the total amount of EUR 52,473.07 and in proof of that it provided several bank transfers and receipts.

12. According to the Respondents’ submissions, the Respondent had made an invitation to the Claimant to apply a reduction at the rate of 30% from the contractual payment. However, the Claimant refused and did not accept the discount despite the invitation offer rate was “appropriate and reasonable”.

13. The Respondent further argued that the crisis and the covid-19 period caused by the Turkish economy's excessive current account deficit and foreign-currency debt in combination and it is characterized by the Turkish lira (TRY) “plunging in value, high inflation, rising borrowing costs, and correspondingly rising loan defaults, TRY has lost about more than 30% of its value against the Euro since last year”.

14. On 26 August 2020, after the request from FIFA Administration to confirm the alleged payments stated by the Respondent in its reply, the Claimant sent a correspondence in which inter alia states:

“According to the players’ calculation including TL (i.e. Turkish Liras) the club has made totally 52.200 EUR. On the other hand, the club assert that club has paid total 52,473,97EUR including TL payments. Thus, in fact there is no any differences for the players’ credit from the club. The reason for differences 52.473,07 EUR – 52.000 EUR is as the club lawyer state that the club has made some remunerations as TL currency and the player has deducted all payment from his credits. TL payment is options of the club and players has no mistake for this therefore club has to bear the loss of paying some part of its obligations as TL instead of EUR”.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

1. First of all, the Dispute Resolution Chamber (hereinafter “DRC”) analysed whether it was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 18 June 2020 and submitted for decision on 13 January 2021. Taking into account the wording of art. 21 of the January 2021 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, DRC referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition January 2021), it is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Serbian player and a Turkish club.

3. Furthermore, the DRC 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 Player (edition January 2021), and considering that the present claim was lodged on 18 June 2020, the June 2020 edition of said regulations (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 DRC 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. Having said this, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

6. In this respect, the DRC recalled that the Player and the Club concluded the Contract, according to which the player was entitled to a salary per season in the amount of EUR 100,000 and an accommodation allowance in the amount of EUR 5,000.

7. Subsequently, the DRC noted that the Player, on 5 June 2020, put the club in default of payment of outstanding salaries.

8. Notwithstanding the above, the DRC observed that the Respondent submitted multiple proofs of payment allegedly made to the Claimant. In this context, the DRC took note of the fact that the Player was invited to provide his comments on the alleged proofs of payment submitted by the Respondent in its reply.

9. Additionally, the Respondent is justifying the non-payment of salaries due to the Turkish crisis caused by the Covid-19 pandemic. However, the DRC noticed that the default in payments started in September 2019, well in advance of the events caused by the covid-19 pandemic on or around March 2020. The DRC hence decided that it could not follow the reasoning of the Respondent.

10. Another argument presented by the Respondent to the DRC consists on the fact that according to the Respondent, the Player was not reasonable for not accepting the reduction of 30% in his salary considering that other players did accept the same reduction.

11. In relation to this argument, the DRC noted that the Respondent had provided four letters allegedly signed by other players. However, it was not possible to identify these players based on the documentation provided.

12. Moreover, the DRC understood that even if those players indeed accepted the reduction in his salary, this does not bind the Claimant to accept the reduction. It followed therefore that the amounts due to the Player under the Contract should have been paid.

13. Once the obligation to pay the outstanding salaries had been confirmed, the DRC proceeded to analyse the payment receipts and other bank documentation provided by the Respondent and commented on by the Claimant.

14. The DRC observed that the Claimant, on 26 August 2020 confirmed not having received the amount of EUR 52,800. Therefore, the Claimant reiterated his request.

15. Moreover, the DRC further noted that the proofs of payment provided by the club were not contested by the Claimant, however, those evidences of payment corresponded to amounts not claimed by the Player and as such were not sufficient to demonstrate that the Player’s remuneration had been fully paid.

16. In relation to this line of argumentation, the DRC had to concur with the Claimant when it states:

17. On account of the aforementioned considerations, the DRC established that the Respondent failed to remit the Claimant’s remuneration in the total amount of EUR 52,800, corresponding to the monthly salaries of November 2019 (i.e. partially paid) to May 2020.

18. Consequently, the DRC decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent was liable to pay to the Claimant outstanding remuneration in the total amount of EUR 52,800.

19. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount EUR 52,800 as from the due dates until the date of effective payment.

20. Furthermore, 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 amount of outstanding remuneration.

21. In this regard, the DRC 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 amount is paid and for the maximum duration of three entire and consecutive registration periods.

22. 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.

23. 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.

24. Lastly, The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

25. Likewise and for the sake of completeness, the Chamber 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. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Mr Jasmin Trtovac, is accepted.

2. The Respondent, Menemen Belediyesport, has to pay to the Claimant, the amount of EUR 52,800 net plus 5% interest p.a. as follows:

a. On EUR 4,800 net from 16 December 2019 until the date of effective payment;

b. On EUR 8,000 net from 16 January 2020 until the date of effective payment;

c. On EUR 8,000 net from 16 February 2020 until the date of effective payment;

d. On EUR 8,000 net from 16 March 2020 until the date of effective payment;

e. On EUR 8,000 net from 16 April 2020 until the date of effective payment;

f. On EUR 8,000 net from16 May 2020 until the date of effective payment and

g. On EUR 8,000 net from 16 June 2020 until the date of effective payment.

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:

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).

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:

Fédération Internationale de Football Association

FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777