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

• Data decisione: 9 dicembre 2020 • 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 9 December 2020

Decision of the DRC Judge

passed on 9 December 2020

regarding an employment-related dispute concerning the player Innocent EMEGHARA

BY:

Daan de Jong (Netherlands), DRC Judge

CLAIMANT:

Innocent EMEGHARA, Switzerland

Represented by Bär & Karrer

RESPONDENT:

Fatih Karagümrük SK, Turkey

Represented by Sami Dinç Law Office

Page 3 of 8I. Facts

1. On 9 August 2019, the parties concluded an employment contract valid as from the date of signature until 31 May 2020 “or any later date on which an official match is played in the respective season”.

2. The contract stipulated the following economic terms:

"6.1–For 2019/2020 Football Season: 20.000-Euro (Two Hundred Thousands Euros)

-60.000,00-Euro of the abovementioned amount shall be paid to the Player as an advance payment in 3 days following Turkish Football Federation receives the International Transfer Certificate (ITC) (...)

-140.000,00-Euro of the aforementioned amount is to be paid to the Player by the Club as the monthly salary in 10 (ten) equal instalments (10 x 14.000,00-Euro) between the period August 2019 –May 2020. The monthly salaries are to be paid the last day of the relevant months."(...)

"6.3 –Living costs of the Player

In addition to the abovementioned amounts, the Club shall pay to the Player 10.000,00-Euro in total as living cost in 10 (ten) equal instalments ( 10 x 1.000,00-Euro) between the period August 2019 –May 2020 for the 2019/2020 football season during the life of this contract. The living costs instalments are to be paid the last day of the relevant months. (...)"

3. On 13 May 2020, the player received a notification from the Respondent, indicating the following:

“(...) we kindly propose the Player to sign an amendment of agreement for making a discount and reconstructing on the all of the 2019/2020 football seasons remunerations which determined in the professional football player contract and in case our said proposal shall not be accepted in 5 (five) days at the latest following the receipt of this notification, we kindly notify that the Club shall make the unilaterally amendments for the fair, proportional and reasonable reduction(...)"(...)"(...) we kindly propose the Player to sign an amendment agreement in order to make a discount at the rate of 30% to all the remunerations of the 2019/2020 football season

(...)

"Therewith we would like to state that if our Club will promote to the TFF Super League at the end of the 2019/2020 football season, our Club may find an opportunity to compensate its financial loss in some measures, the said discount on the Players remunerations shall be in-valid and the agreed discounted amount shall be paid to the Player following to abovementioned success occurs."

4. On 14 May, the player sent a notice to the club, indicating that “there is no justification to retroactively reduce the salary for the entire season” and that ”the COVID-19 crisis did not exist prior to March 2020”, and stating the amount of EUR 65,000 was overdue.

5. On 20 May 2020, the player sent a letter to the club explaining that he is “willing to find an overall solution concerning the currently overdue amounts and a possible reduction of some payments due to the COVID-19 crisis” .

6. On 7 June 2020, the player sent a proposal in relation to the COVID-19 consequences and “conditional upon the full remaining amount of EUR35,000.00 being paid”

7. On 12 June 2020, the season in Turkey resumed.

8. On 11 August 2020, the player sent a default notice to the club, requesting the payment within 10 days of the outstanding amount of EUR 45,000, detailed as follows:

• EUR 14,000 for the salary of March 2020

• EUR 1,000 for the living costs of March 2020

• EUR 14,000for the salary of April 2020;

• EUR 1,000 for the living costs of April 2020;

• EUR 14,000 for the salary of May 2020;

• EUR 1,000 for the living costs of May 2020.

9. On 11 September 2020, and requested the payment of the outstanding amount of EUR 45,000 as indicated in his default notice, plus 5% interest p.a. as from the due dates.

10. According to the Claimant, “in earlier correspondence, the Club intended to apply a unilateral salary reduction, invoking as a pretext the COVID-19 pandemic”, however, “subsequently no longer referred to these "reasons" for its non-payment, but instead simply chose not to reply to any requests”

11. The player explained that he “does not doubt the seriousness of the current situation and understand the financial impact caused by the pandemic”. However he specified that “any unilateral reduction made or attempted by the Respondent was illegitimate for numerous reasons.

12. The player explained that he made several proposals to the club concerning the COVID-19 effects, but ultimately never entered into a negotiation.

13. The club requested a deadline extension to reply to the claim. However, it failed to provide its comments after said extension was granted.

II. Considerations of the DRC Judge

1. The First of all, the DRC Judge (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 DRC Judge 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 DRC Judge 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 Swiss player and a Turkish club.

3. In continuation, the DRC Judge analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present 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 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 DRC Judge 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 DRC Judge 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. Subsequently, the DRC Judge observed that, on 9 August 2019, the parties concluded an employment contract valid as from the date of signature until 31 May 2020 “or any later date on which an official match is played in the respective season”.

6. Thereafter, the DRC Judge noted that the Claimant lodged a claim before FIFA against the Respondent, and requested the outstanding amount of EUR 45,000, detailed as follows:

• EUR 14,000 for the salary of March 2020

• EUR 1,000 for the living costs of March 2020

• EUR 14,000for the salary of April 2020;

• EUR 1,000 for the living costs of April 2020;

• EUR 14,000 for the salary of May 2020;

• EUR 1,000 for the living costs of May 2020.

7. Conversely, the DRC Judge noted that the Respondent failed to present a substantive response to the claim of the Claimant, in spite of having been invited to do so. In particular, the DRC Judge observed that the Respondent indeed requested an extension of the deadline to reply to the claim, but ultimately failed to provide a substantial response. Thus, by not presenting its position to the claim, the DRC Judge was of the opinion that the Respondent renounced its right of defense and, thus, accepted the allegations of the Claimant.

8. Furthermore, as a consequence of the aforementioned consideration, the DRC Judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of the documentation already on file; in other words, upon the statements and documents presented by the Claimant.

9. In this respect, the DRC Judge noted that, indeed, the Claimant was contractually entitled to the following amounts:

"6.1–For 2019/2020 Football Season: 20.000-Euro (Two Hundred Thousands Euros)

"6.3 –Living costs of the Player In addition to the abovementioned amounts, the Club shall pay to the Player 10.000,00-Euro in total as living cost in 10 (ten) equal instalments ( 10 x 1.000,00-Euro) between the period August 2019 –May 2020 for the 2019/2020 football season during the life of this contract. The living costs instalments are to be paid the last day of the relevant months. (...)"

10. In view of the above, the DRC Judge confirmed that the Claimant’s request was grounded on the contractual terms agreed between the parties and, as a result, he is entitled to the following amounts, which are understood as outstanding:

- EUR 14,000 for the salary of March 2020;

- EUR 1,000 for the living costs of March 2020;

- EUR 14,000 for the salary of April 2020;

- EUR 1,000 for the living costs of April 2020;

- EUR 14,000 for the salary of May 2020;

- EUR 1,000 for the living costs of May 2020.

11. Consequently, in strict application of the principle of pacta sunt servanda, the DRC Judge established that the Respondent has to pay to the Claimant, the total outstanding amount of EUR 45,000, as agreed in the contract concluded between the parties.

12. Moreover, taking into account the request of the Claimant as well as the longstanding jurisprudence in this regard, the DRC Judge decided to award 5% interest p.a. over said amount as from the applicable due dates (i.e. interest calculated as from the day following the due date).

13. Furthermore, taking into account the previous considerations, the DRC Judge 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.

14. 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.

15. Therefore, bearing in mind the above, the DRC Judge 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.

16. 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.

III. Decision of the DRC Judge

1. The claim of the Claimant, Innocent EMEGHARA, is accepted.

2. The Respondent, Fatih Karagümrük SK, has to pay to the Claimant, the following amount:

- EUR 45,000 as outstanding remuneration plus 5% interest p.a. as from the due dates 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 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:

Fédération Internationale de Football Association

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

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