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 27 January 2021

Decision of the

DRC Judge

passed on 27 January 2021,

regarding an employment-related dispute concerning the player Joseph Larweh Attamah

BY:

Alexandra Gómez Bruinewoud (Uruguay / The Netherlands), DRC Judge

CLAIMANT:

Joseph Larweh Attamah, Ghana

Represented by Livida Sport Limited

RESPONDENT:

Fatih Karagumruk AS, Turkey

Represented by Mr Sami Dinc

I. FACTS OF THE CASE

1. On 28 January 2020, the parties entered into an employment contract –within the context of a loan transfer from the player from the Turkish club, Istanbul Basaksehir A.S. to the Respondent– valid as from the date of its signature until the end of the “second half of 2019/2020 season”, i.e. until 31 May 2020.

2. In accordance with clause 6.1 of the contract, the player was entitled to the following fixed remuneration:

- EUR 20,000 corresponding to the salary of January 2020, payable by 5 February 2020;

- EUR 20,000 corresponding to the salary of February 2020, payable by 28 February 2020;

- EUR 20,000 corresponding to the salary of March 2020, payable by 31 March 2020;

- EUR 20,000 corresponding to the salary of April 2020, payable by 30 April 2020;

- EUR 20,000 corresponding to the salary of May 2020, payable by 31 May 2020;

3. Moreover, clause 6.2 of the contract provides the payment of a bonus to the player, in the amount of EUR 25,000 “In case the club promotes to the TFF Super League at the end of the football season of 2019/2020 […] calculated based on the 17 official TFF 1st league matches (25,000-Euro / 17 official TFF 1st league matches). In case the Players´ attendance in the squad and field in the course of the game, the Player shall be entitled 1,102.93 Euro for this match; In case the Player’s attendance in the squad but without playing in the game, the Player shall be entitled to 735.29-Euro for this match. In case the Player doesn´t serve in the squad, the Player shall not be entitled for the bonus for this match. This bonus shall be paid in 60 days following the end of the football season of 2019/2020, in case it occurs”.

4. On 15 May 2020, the parties entered into an amendment to the contract due to the financial situation suffered by the club upon the Covid-19 pandemic and whereby the parties agreed, inter alia, on “a discount at the rate of 20%” to be applied to “all the remunerations of 2019/2020 football season under any name whatsoever which determined in the Contract”.

5. Clause 3.2 of the amendment to the contract reads as follows: “In case the Club promotes to Turkish Super League at the end of the football season of 2019/2020, the abovementioned discount at the rate of 20% shall be considered invalid and the discounted part shall be paid to the Player in 90 days following the occurring date of the said success”.

6. On 7 August 2020, the player put the club in default of payment regarding his outstanding moneys granting the Respondent a 15 days´ deadline to remedy the default.

7. On 14 September 2020, the player put the club in default of payment in the amount of EUR 91,426.01, granting the Respondent a deadline until 21 September 2020 to remedy the default, corresponding to the following breakdown:

- EUR 5,000 corresponding to the salary of February 2020;

- EUR 20,000 corresponding to the salary of March 2020;

- EUR 20,000 corresponding to the salary of April 2020; EUR 20,000 corresponding to the salary of May 2020;

- EUR 1,268.48 corresponding to the default interest calculated by the Claimant himself in connection with the above-mentioned monthly salaries;

- EUR 25,000 corresponding to the promotion bonus as per clause 6.2 of the contract;

- EUR 157.53 corresponding to the default interest calculated by the Claimant himself concerning the payment of the aforementioned bonus.

8. On 23 September 2020, the player put the club in default of payment –again– and informed the Respondent of the following: “Please note that in addition to the outstanding salary payments owed to our Client, the final deadline for the Club to make payment to our Client of the Promotion Bonus of €25,000 (in accordance with Article 6.2 of the Employment Contract dated 28 January 2020), is 28 September 2020 (being sixty days from the end of the 2019/2020 football season). For the avoidance of doubt payment must be made by 28 September 2020, and any failure to meet this deadline, will constitute yet a further breach by you of the Employment Contract”.

9. On 30 September 2020, the Claimant lodged a claim against the Respondent before FIFA, requesting to be awarded outstanding remuneration in the amount of EUR 93,433.15, plus 5% interest p.a. to be added to the already calculated default interest as from the date on which the claim was lodged until the date of effective payment, corresponding to the following breakdown:

- EUR 5,000 corresponding to the salary of February 2020;

- EUR 20,000 corresponding to the salary of March 2020;

- EUR 20,000 corresponding to the salary of April 2020;

- EUR 20,000 corresponding to the salary of May 2020;

- EUR 1,410.02 corresponding to the default interest calculated by the Claimant himself in connection with the above-mentioned monthly salaries;

- EUR 25,000 corresponding to the promotion bonus as per clause 6.2 of the contract; EUR 10.26 corresponding to the default interest calculated by the Claimant himself concerning the payment of the aforementioned bonus;

- EUR 2,012.87 corresponding to the reimbursement of the legal costs incurred by the Claimant.

10. In his claim, the Claimant explained that, despite having concluded the amendment to the contract, insofar the Respondent was promoted to Turkish Super League at the end of the football season of 2019/2020, the deductions applied by the club on the player´s remuneration during the said season were invalid and the non-paid amounts shall be reimbursed to the player ex. clause 3.2 of the amendment to the contract.

11. In its reply to the claim, the club acknowledged that clause 3.2 of the amendment to the contract was activated upon its promotion into Turkish Super League at the end of the football season 2019/2020, and, therefore, accepted his obligation to proceed with the reimbursement of the deducted amounts.

12. Nevertheless, the Respondent referred to the wording of the above-mentioned clause, which states that, should the club be promoted “the discounted part shall be paid to the Player in 90 days following the occurring date of the said success” (note: emphasis added). In this context, the Respondent stressed that, since the club was promoted on 30 July 2020 (note: supporting documentation provided in this regard), the deducted moneys only fell due on 24 October 2020 (90 days after 30 July 2020; note: error in the calculation – the correct date (dies ad quem) is 28 October 2020, falling all amounts due on 29 October 2020).

13. As to the promotion bonus, the Respondent held that the amount of EUR 25,000 would only be payable to the player if he had participated, within the 11 starters, in all the 17 1st league matches played by the Respondent during the 2019/2020 season, not taken into account the play-off matches. In this regard, the Respondent held that “[t]he content of the league matches and play-off matches are determined by the league status of Turkish Football Federation in the beginning of the relevant football season”. The above being explained, the Respondent held that, since the player participated –within the 11 starters– in 14 TFF 1st league matches, the latter is only entitled to EUR 20,588.23 as promotion bonus (25,000*14 / 17 = 20,588.23).

14. Moreover, the Respondent rejected the calculations made by the Claimant in connection with the applicable default interest. In this regard, the club maintained that the reimbursement of the deductions practiced on the player´s entitlements were only due 90 days after the date on which the club was promoted, i.e. on 24 October 2020. In this regard, the club argued that, at the date on which the claim was lodged, i.e. 30 September 2020, the player was not yet entitled to receive any reimbursement. Therefore, the Respondent stressed that no default interest shall be awarded to the Claimant.

15. Moreover, the Respondent rejected the player´s claim as to the reimbursement of the legal fees expenses incurred by the Claimant.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE

1. First of all, the Dispute Resolution Chamber judge (hereinafter also referred to as DRC judge) analyzed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 30 September 2020 and submitted for decision on 27 January 2021. Taking into account the wording of art. 21 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the June 2020 edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the DRC judge referred to art. 3 par. 1 and 2 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 judge is competent to deal with the matter at stake, which concerns an employment–related dispute with an international dimension.

3. In continuation, the DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, the DRC judge 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 claim was lodged on 30 September 2020, the August 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC judge 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 that, the DRC judge acknowledged that the Claimant and the Respondent signed 2 different agreements which are relevant for the matter-at hand: the main employment contract and an amendment to the contract. In this respect, the DRC judge noted that, in accordance with clause 3.2 of the amendment to the contract, the Respondent undertook to reimburse to the player the amount deducted from his contractual entitlements, i.e. an amount equal to 20% thereof, should the Respondent promote to Turkish Super League at the end of the football season of 2019/2020. In particular, the DRC judge observed that the said reimbursement was to be made during the 90 days that followed the Respondent´s promotion.

6. In this context, the DRC judge observed that, whereas the Respondent acknowledged its obligation to pay the outstanding amounts to the player, as well as to reimburse to him the deducted amounts from his salaries until May 2020, the latter argued that the player lodged his claim prior to the reimbursement of the deducted amounts, i.e. EUR 16,000, was triggered, ex clause 3.2 of the amendment to the contract.

7. In this respect, the DRC judge noted that the Respondent maintained that the amount of EUR 16,000 (which was deducted from the player´s entitlements) fell due on 24 October 2020 (i.e. 90 days after the Respondent´s promotion to Turkish Super League – as calculated by the Respondent) and the Claimant already lodged his claim on 30 September 2020. Thus –continued the DRC judge–, the Respondent held that the player is not entitled to the amount of EUR 16,000 (the alleged deducted amount), since it was not due at the date on which the claim was lodged.

8. Moreover, the DRC judge took note of the fact that the Respondent denied that the player is entitled to receive the requested amount of EUR 25,000 as promotion bonus, since the player only played in 14 TFF 1st league matches, within the 11 starters, and not in 17, as clause 6.2 of the contract contemplates in order for the payment of the whole amount of EUR 25,000 to be considered triggered. Furthermore –noted the DRC judge– the Respondent held that no default interest shall be granted to the player, since the player lodged his claim prior to his entitlements falling due.

9. The DRC judge also noted that the Claimant requested his legal expenses to be reimbursed, extent to which the Respondent opposed.

10. In the first place, the DRC judge noted that, as ascertained by the Respondent, the deductions practiced by the club on the player´s entitlements were to be reimbursed 90 days after the club´s promotion, the latter of which occurred on 30 July 2020. Hence, determined the DRC judge, the club should have reimbursed the deducted amounts to the player by 28 October 2020.

11. Nevertheless, stressed the DRC judge, the Respondent miscalculated the dies ad quem of the said term and stated that the amounts were payable on 24 October 2020. Hence, the DRC judge determined that the said date will be taken into account as date on which the said reimbursement should have been practiced. Following the argumentation of the Respondent, the DRC judge pointed out that the deducted moneys amount to EUR 16,000 (80,000*0.2 = 16,000, i.e. 20% of the player´s salaries as from February until May 2020).

12. Nevertheless, the DRC judge concluded that, since the Claimant is not requesting the whole salary of February, but only EUR 5,000 out of the EUR 20,000, in the absence of any allocation as to whether the requested EUR 5,000 fall within the scope of the deducted amount or of the outstanding amounts due to the player, 20% of the requested EUR 5,000, i.e. EUR 1,000, shall be considered as the amount deducted by the club from the salary of February 2020 as per the amendment to the contract, having the remaining EUR 4,000 the consideration of outstanding remuneration.

13. Thus –concluded the DRC judge– the amount of EUR 13,000 (EUR 1,000 corresponding to the salary of February 2020 and EUR 12,000 corresponding to 20% of the salaries of March, April and May 2020 in the amount of EUR 4,000 each) correspond to the amount deducted by the club as per the amendment to the contract; whereas the amount of EUR 52,000 (80% of the salaries as from February until May 2020 –for the one of February only the requested amount of EUR 5,000 is taken as basis– has the consideration of outstanding salaries.

14. In view of the above –continued the DRC judge–, although the deducted amounts were not due at the date on which the present claim was lodged, in view of the fact that the Respondent club replied to the claim on 10 November 2020, i.e. after the due date for payment of the reimbursement of the deducted amount, the club thereby acknowledged not having complied with its financial obligations regarding both the reimbursement of the deducted amounts and the outstanding remuneration of the player.

15. As to the entitlement of the player to receive the amount of EUR 25,000 as promotion bonus, the DRC judge noted that it was acknowledged by the Respondent that the latter did promote to the Turkish Super League. As to the argument of the Respondent regarding the participation of the player in only 14 official matches, as per the documentation provided by both parties, the DRC judge carefully analysed the documentation on file and determined that the player did participate in 17 official matches within the 11 starters (14 of them corresponding to ordinary official matches and 3 of them corresponding to play-off matches, the latter of which also had the consideration of official matches).

16. In view of all of the above, the DRC judge determined that the argumentation of the Respondent in this regard cannot be followed.

17. Hence, the DRC judge concurred that the Respondent must fulfil its obligations as per both, the main employment contract and its amendment in accordance with the general legal principle of “pacta sunt servanda” and shall, therefore, be condemned to pay to the player outstanding remuneration in the amount of EUR 90,000, as follows:

- EUR 13,000 corresponding to the reductions practiced by the club on his monthly entitlements, plus 5% interest p.a. as from 24 October 2020, as acknowledged by the Respondent;

- EUR 52,000 corresponding to the outstanding salaries that were not subject of deductions, plus 5% interest p.a. as from their corresponding due dates (pro rata calculated as follows):

o 5% interest p.a. on the amount of EUR 4,000 (80% of the requested instalment of February 2020) as from 1 March 2020 until the date of effective payment;

o 5% interest p.a. on the amount of EUR 16,000 (80% of the requested instalment of March 2020) as from 1 April 2020 until the date of effective payment;

o 5% interest p.a. on the amount of EUR 16,000 (80% of the requested instalment of April 2020) as from 1 May 2020 until the date of effective payment;

o 5% interest p.a. on the amount of EUR 16,000 (80% of the requested instalment of May 2020) as from 1 June 2020 until the date of effective payment;

- EUR 25,000 corresponding to the promotion bonus, plus 5% interest p.a. as from 25 September 2020 (to the best knowledge of the FIFA administration, although the football season 2019/2020 should have ended on 31 May 2020, due to Covid-19, the latter was extended until 26 July 2020; hence, the term of 60 days established in clause 6.2 of the contract, concerning the due date for payment of the promotion bonus, ended on 24 September 2020).

18. The DRC judge further determined that the default interest calculated by the Claimant as well as his request regarding the reimbursement of legal expenses are to be rejected.

19. Furthermore, taking into account the consideration under number II./3. above, the DRC judge referred to para. 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.

20. In this regard, the DRC judge 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.

21. Therefore, bearing in mind the above, the DRC 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.

22. Finally, the DRC judge 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.

23. The DRC judge concluded his deliberations in the present matter stipulating that any further claim lodged by the Claimant is rejected. In conclusion, the Claimant’s claim is partially accepted.

III. DECISION OF THE DRC JUDGE

1. The claim of the Claimant, Joseph Larweh Attamah, is partially accepted.

2. The Respondent, Fatih Karagumruk AS, has to pay to the Claimant, the following amount:

- EUR 90,000 as outstanding remuneration plus 5% interest p.a. calculated as follows:

- Over the amount of EUR 13,000, as of 29 October 2020 until the date of effective payment;

- Over the amount of EUR 4,000, as of 1 March 2020 until the date of effective payment;

- Over the amount of EUR 16,000, as of 1 April 2020 until the date of effective payment;

- Over the amount of EUR 16,000, as of 1 May 2020 until the date of effective payment;

- Over the amount of EUR 16,000, as of 1 June 2020 until the date of effective payment;

- Over the amount of EUR 25,000, as of 25 September 2020 until the date of effective payment.

3. 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

4. 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).

5. 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.

6. The decision is rendered free of costs.

For the DRC judge:

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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