F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – overdue payables / debiti scaduti – (2020-2021) – fifa.com – atto non ufficiale – Decision 9 February 2021

Decision of the

Single Judge of the Players' Status Committee

passed on 9 February 2021

regarding a contractual dispute concerning the player Kehinde Olanrewaju Muhammed

BY:

Stefano La Porta (Italy), Single Judge of the PSC

CLAIMANT:

Denizlispor Kulubu, Turkey

RESPONDENT:

Incheon United FC, Korea Republic

I. FACTS OF THE CASE

1. On 10 January 2019, the Turkish club, Denizlispor Kulubu Dernegi (hereinafter: the Claimant) and the player, Kehinde Olanrewaju Muhammed (hereinafter: the player) concluded an employment contract valid as from the date of signature until 31 May 2020 (hereinafter: the employment agreement).

2. On 17 July 2019, the player terminated the employment agreement unilaterally, and subsequently signed a new employment contract with the Korean club, Incheon United FC (hereinafter: the Respondent).

3. On 25 July 2019, the Respondent requested the Third-Party Ownership (TPO) declaration from the Claimant via e-mail. Such request was addressed to inter alia the e-mail serhanaltay@denizlispor.org.tr.

4. On 26 July 2020, following the unilateral termination of the employment agreement by the player, the player, the Claimant, and the Respondent executed a settlement agreement (hereinafter: the contract).

5. According to the contract, it was agreed that the player had terminated the employment agreement without just cause and, accordingly, the Respondent undertook to pay the Claimant USD 200,000 as compensation for breach of the employment contract. Such amount was payable as follows: (a) USD 100,000 within 7 days from the delivery of the player’s International Transfer Certificate (ITC), and (b) USD 100,000 by 30 September 2019.

6. The contract further established as follows: “In case the first instalment is not paid on time and in full the second instalment will become due immediately without an additional procedure. In case of a default in full or in part, [the Respondent] and [the player] will pay to [the Claimant] a penalty in the amount of 10% of total compensation in addition to applicable interest”.

7. On 26 July 2019, the International Transfer Certificate (ITC) of the player was released by the Turkish Football Federation.

8. On 26 July 2019, following the execution of the contract, the Claimant, from e-mail address serhanaltay@denizlispor.org.tr, sent an e-mail to the Respondent, to the e-mail address ksyful@incheonutd.com. The e-mail inter alia indicated the following bank account of the Claimant:

“Turk Ekonomi Bankasi TR90 0003 2000 0000 0055 6975 44

Swift Code: TEBUTRIS019”

9. On 30 July 2019, the Claimant sent an e-mail from serhanaltay@denizlispor.org.tr to the Respondent (inter alia at ksyful@incheonutd.com) asking that payment was made to the following bank account:

“Account name: Denizlispor Kulubu Dernegi

Account number TR90 0003 2000 0000 0055 6975 44

Swift Code: TEBUTRIS019

Bank name: Turk Ekonomi Bankasi A.S.

Branch: Denizli/Turkey“.

10. On 5 August 2019, the Claimant sent an e-mail again from serhanaltay@denizlispor.org.tr to the Respondent, again to the e-mail address ksyful@incheonutd.com, stating that it had not received the USD 100,000 due as per the contract, and requesting that payment was made to the following bank account:

“Account name: Denizlispor Kulubu Dernegi

Account number TR90 0003 2000 0000 0055 6975 44

Swift Code: TEBUTRIS019

Bank name: Turk Ekonomi Bankasi A.S.

Branch: Denizli/Turkey“.

11. Between August and November 2019, the parties exchanged several e-mails concerning the missed payment. Ultimately, on 5 November 2019, the Claimant indicated a different bank account in Turkey.

12. On 11 November 2019, the player lodged a claim against the Claimant, claiming inter alia that he had just cause to terminate the employment agreement and requesting that the contract was deemed “cancelled”, and that the FIFA Dispute Resolution Chamber (DRC) declared that no amounts were due by the player or the Respondent towards the Claimant.

13. By means of a decision passed on 15 April 2020, the DRC Judge rejected the player’s claim.

14. On 20 April 2020, the Claimant put the Respondent in default of payment of USD 200,000. The Claimant provided the Respondent with a 10-days deadline to remedy the default and indicated the following bank account:

“Account name: Denizlispor Kulubu Dernegi

Account number TR90 0003 2000 0000 0055 6975 44

Swift Code: TEBUTRIS019

Bank name: Turk Ekonomi Bankasi A.S.

Branch: Denizli/Turkey“.

II. PROCEEDINGS BEFORE FIFA

15. On 23 July 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. The claim of the Claimant

16. According to the Claimant, the Respondent did not pay the USD 200,000 due as per the contract.

17. In this regard, the Claimant explained that in the claim filed by the player against the Claimant, the player sustained that the Respondent had already made a payment of USD 100,000. With regard to the payment receipt provided by the player, the Claimant wished to highlight that this payment was made in favour of a Mexican bank account.

18. In this respect, the Claimant held that it “does not have any bank account outside of Turkey as an official”. Furthermore, the Claimant also sustained that it had “clearly indicated its bank account in the e-mails which were sent to [the Respondent]”.

19. The Claimant requested payment of USD 200,000 plus interest of 5% p.a. on said amount as from 30 July 2019, as well a contractual fine of USD 20,000.

b. Position of the Respondent

20. In its reply, the Respondent argued that it has duly paid the amount of USD 200,000, as follows:

a. As to the first instalment of USD 100,000, the Respondent explained that this amount was transferred on 2 August 2020 to a Spanish bank account indicated by the Respondent by means of an email on 30 July 2020 from Mr. Serhan Altay, the alleged lawyer of the Claimant.

b. After the said bank transfer, the amount was blocked and returned to the Korean bank account of the Respondent. On 18 August 2020, the Respondent again paid the amount of USD 100,000, this time to the Mexican bank account indicated by Mr. Serhan Altay on 16 August 2020.

c. On 18 September 2020, Mr. Serhan Altay confirmed on behalf of the Claimant that the amount of USD 100,000 was duly received. On 19 September 2020, the Claimant sent a document referred to as “Payment receipt” to the Respondent, in which it is confirmed that it duly received the amount of USD 100,000.

d. As to the second instalment of USD 100,000, the Respondent explained that on 2 October 2020, it made a first attempt to pay it to the same Mexican bank account as the one used for the payment of the first instalment, but that eventually, on 19 December 2020, an amount of USD 52,761.01 was refunded to the Korean bank account of the Respondent.

e. According to the Respondent, on 21 January 2020, the Claimant acknowledged receipt of the total amount of USD 47,238.99.

21. In support of its allegations, the Respondent filed copies of e-mails exchanged with e-mails serhanaltay.denizlispor.org@dr.com or serhanaltay.denizlispor.org@dr.com.

22. Furthermore, the Respondent confirms that it is still obliged to pay an amount of USD 52,761.01 to the Claimant, but explicitly denies the arguments of the Claimant that the only valid bank account was a Turkish bank account.

23. Also, the Respondent argues that the Claimant used several addresses in the last period, that is, serhanaltay@denizlispor.org.tr, serhanaltay.denizlispor.org@dr.com and serhanaltay.denizlispor.org@dr.com and that from these addresses also the different bank details were communicated.

24. What is more, the Respondent points out that the matter at hand relates to the payment of a settlement sum, and therefore, not an agreement on a transfer fee. In addition, according to the Respondent, the Claimant had already sent a “forged remittance confirmation letter”, as a result of which the Respondent is of the opinion that “there may have been criminal activities such as embezzlement or fraud inside Denizlispor”. Also the document submitted as annex 4, i.e. the email records between the parties by the Claimant, look, as per the Respondent, fabricated.

25. In conclusion, the Respondent asks for the rejection of the claim, except for the part of USD 52,761.01, which it explicitly acknowledges to owe.

c. Rejoinder of the Claimant

26. The Claimant reiterated that it had used the email serhanaltay@denizlispor.org.tr to send the settlement agreement duly signed. The Claimant argued that any other e-mails accounts are “fake e-mail addresses”.

27. The Claimant furthermore argued that on 18 October 2019 the Respondent sent an e-mail confirming that the remittance of USD 200,000 had been done.

28. The Claimant submitted that the Respondent should have confirmed the bank details and e-mail indicated by the Claimant in TMS, however it “preferred to believe a statement of an e-mail address which is obviously fake”.

d. Final comments of the Respondent

29. The Respondent denied that some of the e-mail accounts used by the Claimant to send it e-mails in fact belonged to the Respondent. It argued that the only correct account was ksyful@incheonutd.com. It referred in particular to the bank details sent on 16 August 2019.

30. The Respondent further highlighted that it paid USD 200,000 in two instalments and that the evidence provided by the Claimant in its replica is forged.

31. The Respondent reiterated that it owes USD 52,761 to the Claimant. It claimed that no interest nor penalty shall apply on these amounts as the defaulted payment “does not result from the fault of” the Respondent.

III. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PLAYERS’ STATUS COMMITTEE

a. Competence and applicable legal framework

32. First of all, the Single Judge of the Players’ Status Committee (hereinafter also referred to as Single Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was presented to FIFA on 23 July 2020 and submitted for decision on 9 February 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 Single Judge (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

33. Subsequently, the Single Judge referred to art. 3 par. 1 of the Procedural Rules and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. f) of the Regulations on the Status and Transfer of Players (edition January 2021), he is competent to deal with the matter at stake, which concerns in international dispute between clubs belonging to different associations, i.e. a Turkish club and a club from Korea Republic.

34. Subsequently, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition January 2021), and considering that the present claim was lodged on 23 July 2020, the June 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

35. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, he stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties.

36. In this respect, the Single Judge also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c. Merits of the dispute

37. His competence and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started by acknowledging the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Single Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand.

i. Main legal discussion and considerations

38. Having said this, the Single Judge acknowledged that the Claimant and the Respondent signed the contract, in accordance with which the Claimant was entitled to receive from the Respondent USD 200,000, of which (a) USD 100,000 were payable by 2 August 2019 and (b) USD 100,000 were due on 30 September 2019.

39. The Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent has overdue payables towards it in the total amount of USD 200,000, and requesting payment of such amount plus USD 20,000 as a contractual fine, together with interests.

40. Subsequently, the Single Judge took into account that the Respondent, for its part, objected to the claim and argued that it had paid a portion of the amount agreed under the contract to the Claimant. Hence, the Single Judge decided to verify what, if any, payments had been properly made by the Respondent.

41. The Single Judge turned then to the evidence on file, and confirmed that that the banking details of the Claimant were submitted from the email address "serhanaltay@denizlispor.org.tr" on 26 July 2019 and at least in two occasions thereafter. Following this, the Single Judge emphasized that the Respondent exchanged correspondence with other email addresses (“serhanaltay.denizlispor.org@dr.com” and “serhanaltay.denizlispor.org@dr.com") without taking further verification steps towards the Claimant regarding this issue. The Single Judge noted that while the name indicated in the said exchanged correspondence was “Av. Serhan ALTAY <erhanaltay@denizlispor.org.tr>", the e-mail was being sent from either “serhanaltay.denizlispor.org@dr.com” or “serhanaltay.denizlispor.org@dr.com”.

42. In addition, the Single Judge underlined that the Respondent proceeded with payment attempts to a bank account in Mexico, until it was successful. This payment was made via bank transfer to a bank account of which the bank details were different than the ones communicated initially by the Claimant on 26 July 2019

via "serhanaltay@denizlispor.org.tr".

43. What is more, the Single Judge noted that a second payment was also successful, made to the same bank account in Mexico. He observed that while such second payment also had problems, it was eventually partially completed, and again concluded to a different bank account than the one indicated by the Claimant.

44. At this point, the Single Judge found it important to state that it stood undisputed that the Respondent did not communicate with the Claimant using only the e-mail from which the latter had firstly sent its bank details.

45. The Single Judge underlined that the Respondent did not seem to have undertaken any verification steps towards the Claimant intended at confirming whether the other e-mail addresses used in further correspondence belonged to the Claimant, despite the fact that the relevant addresses looked less official than the first one, and despite the fact that the banking details had changed to an account located outside Turkey.

46. To this end, the Single Judge emphasized that the Respondent had to notice the fact that the bank account to which it paid the amounts was opened in Mexico, while the club was based in Turkey, moreover due to the fact that the Claimant, via its official e-mail account had clearly indicated a bank account opened in Turkey with a Turkish bank. The Single Judge found thus, once given a new bank account not located in Turkey, that the Respondent had to, at least, clarify this issue before executing any payments – especially in light of the fact that the first payment attempt had been unsuccessful.

47. The Single Judge found it important to note that it is for clubs to be diligent when making payments, which means, for instance, checking information accurately and reviewing relevant data, such as the bank details included in TMS.

48. As a result and on the basis of all of the aforementioned considerations, the Single Judge concluded that the Respondent had not acted with due diligence by not taking the necessary precautionary steps to question the Claimant via any other communication channel as regards to the payment attempts made until the date of the effective payment.

49. Therefore, the Single Judge considered that the arguments of the Respondent were not acceptable insofar as the Respondent failed to provide evidence that it paid the contractually agreed amounts to the bank account(s) provided by the Claimant's e-mail address "serhanaltay@denizlispor.org.tr".

50. The Single Judge subsequently turned to the Respondent’s allegation of forgery, and while recalling the aforementioned principle of burden of proof, concluded that such line of reasoning must also be rejected on the grounds that the Respondent failed to provide any evidence in this respect, moreover due to the fact that it stood undisputed that the Respondent engaged in communication with third parties, that is, with someone who clearly did not belong to the Claimant, as per the e-mails found on file.

51. On account of the aforementioned considerations and the documentary evidence on file, the Single Judge established that the Respondent failed to remit the Claimant’s remuneration in the total amount of EUR 200,000 corresponding to the amounts agreed under the contract, hence being in breach of the latter. Consequently, the Single Judge determined that such breach gave rise to the application of the relevant contractual penalty of USD 20,000.

52. Consequently, the Single Judge decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant overdue payables in the total amount of EUR 200,000, as well as a contractual fine of USD 20,000.

53. In addition, taking into account the Claimant’s request as well as the constant practice of the Players’ Status Committee, the Single Judge concluded that the Respondent must pay to the Claimant interest of 5% p.a. on each of the relevant payment(s) as of the day following the day on which the relevant payment(s) fell due, until the date of effective payment.

ii. Art. 12bis of the Regulations

54. The Single Judge took particular note of the fact that, on 20 April 2020, the Claimant put the Respondent in default of payment of the aforementioned amounts, setting a time limit of 10 days in order for the latter to remedy the default.

55. Consequently, the Single Judge concluded that the Claimant had duly proceeded in accordance with art. 12bis par. 3 of the Regulations, which stipulates that the creditor (player or club) must have put the debtor club in default in writing and have granted a deadline of at least ten days for the debtor club to comply with its financial obligation(s).

56. In addition, as per his foregoing considerations, the Single Judge established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

57. Taking into account the applicable Regulations, the Single Judge referred to art.12bis par. 2 of the Regulations which stipulates that any club found to have delayed a due payment for more than 30 days without a prima facie contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the Regulations.

58. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. On account of the above, the Single Judge decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.

59. In this connection, the Single Judge wished to highlight that a repeated offence will be considered as an aggravating circumstance and lead to more severe penalty in accordance with art. 12bis par. 6 of the Regulations.

iii. Compliance with monetary decisions

60. Finally, taking into account the applicable Regulations, the Single 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.

61. In this regard, the Single Judge highlighted 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.

62. Therefore, bearing in mind the above, the Single 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 latter communicates the relevant bank details to the Respondent, provided that the decision is final and binding, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.

63. The Single 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.

64. The Single Judge concluded the deliberations by rejecting any further claims of the parties.

65. Notwithstanding the above, the Single Judge decided to refer the case to the Regulatory Enforcement Department of FIFA to investigate possible breaches of the FIFA regulatory framework.

d. Costs

66. The Single Judge referred to article 18 par. a lit. 1) of the Procedural Rules, according to which no costs shall be levied by the parties for claims lodged between 10 June 2020 and 31 December 2020 (both inclusive). Accordingly, the Single Judge decided that no procedural costs were to be imposed on the parties.

67. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

IV. DECISION OF THE SINGLE JUDGE OF THE PLAYERS’ STATUS COMMITTEE

1. The claim of the Claimant, DENIZLISPOR KULUBU, is partially accepted.

2. The Respondent, INCHEON UNITED FC, has to pay to the Claimant the following amounts:

- USD 200,000 as outstanding remuneration plus 5% interest p.a. as from 3 August 2019 until the date of effective payment;

- USD 20,000 as contractual penalty.

3. A warning is imposed on the Respondent.

4. Any further claims of the Claimant are rejected.

5. 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.

6. 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).

7. 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.

8. This decision is rendered without costs.

For the Players' Status Committee:

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