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 11 March 2021

Decision of the

Dispute Resolution Chamber

passed on 11 March 2021

regarding an employment-related dispute concerning the player Gelmin Javier Rivas Boada

COMPOSITION:

Clifford J. Hendel (USA & France), Deputy Chairman

Tomislav Kasalo (Croatia), member

Muzammil Bin Mohamed (Singapore), member

CLAIMANT:

Gelmin Javier Rivas Boada, Venezuela

Represented by Mr Loizos Hadjidemetriou

RESPONDENT:

MKE Ankaragucu SK, Turkey

Represented by Mr. Yasar Tolga Bozkurt

I. FACTS OF THE CASE

1. On 31 January 2020, the Venezuelan player, Gelmin Javier Rivas Boada (hereinafter: the player or the Claimant) and the Turkish club, MKE Ankaragucu SK (hereinafter: the club or the Respondent) signed an employment contract (hereinafter: the contract) valid from the same date until 31 May 2020.

2. According to clause 3 of the contract, the player was entitled to a fixed remuneration of EUR 100,000 payable as follows:

a. EUR 25,000 on 5 February 2020;

b. EUR 25,000 on 10 March 2020;

c. EUR 50,000 on 10 April 2020.

3. The contract additionally established the payment of the following bonuses:

a. EUR 10,000 for every match participation;

b. EUR 5,000 for every game in which the player would be in the squad of 21 players but not participate;

c. EUR 2,000 for every goal or assist;

d. EUR 30,000 in case the Respondent did not relegate to the lower division, provided the Claimant had played in at least 5 matches.

4. The contract provided that such amounts were payable net.

5. On 2 November 2020, the player put the club in default of payment of EUR 220,000, broken down as follows:

a. EUR 67,500 as salaries;

b. EUR 155,000 as bonuses.

II. PROCEEDINGS BEFORE FIFA

6. On 13 November 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

7. The player sought payment of EUR 220,000 plus “legal interest” from the due dates, broken down as follows:

a. EUR 17,500 as outstanding salary since 11/03/2020.

b. EUR 50,000 as outstanding salary since 11/04/2020.

c. EUR 70,000 as participation bonus for 7 matches played.

d. EUR 4,000 as bonuses for one goal and one assist.

e. EUR 30,000 as bonus for 6 matches the player was on the bench.

8. In its reply to the claim, the club argued that it had paid EUR 71,500 (i.e. EUR 61,500 plus TL 82,500) to the player and manifested its will to ty to find a settlement agreement with the player. The club admitted that the player played in 7 matches and sat on the bench in 6 matches, entitling him to EUR 100,000, as well as EUR 4,000 for one goal and one assist.

9. As to the relegation bonus, the club argued that it was relegated, but that by decision of the Turkish Football Federation it continued to play in the first division because of the COVID-19 pandemic, and as such no bonus in this regard was owed.

10. In his rejoinder, the player acknowledged receipt of the amounts paid by the club, but argued that the TL 82,500 were paid as accommodation expenses and vehicle cost and thus are unrelated to the amounts sought.

11. The player furthermore rejected the allegation of the club regarding the relegation bonus and argued that the ultimate goal envisaged by such bonus was reached, and that the player contributed to it. The player hence rectified the amounts due, as follows:

a. EUR 38,500 as outstanding salaries plus interest since 11 April 2020;

b. EUR 100,000 as match participations and squad selection bonuses, plus interest as from 26 July 2020, i.e. the day after the last match of the season;

c. EUR 4,000 as goals/assists bonus; plus interest as from 26 July 2020, i.e. the day after the last match of the season;

d. EUR 30,000 as the relegation bonus, plus interest as from 26 July 2020, i.e. the day after the last match of the season.

12. Despite having been invited to do so, the club did not file its final comments.

III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

a. Competence and applicable legal framework

13. 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. In this respect, it took note that the present matter was presented to FIFA on 13 November 2020 and submitted for decision on 11 March 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.

14. Subsequently, the members of the Chamber 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. b) of the Regulations on the Status and Transfer of Players (edition January 2021), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Venezuelan player and a Turkish club.

15. Subsequently, the Chamber 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 13 November 2020, the October 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

16. The Chamber 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, the DRC stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties.

17. In this respect, the Chamber 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

18. The competence of the DRC and the applicable regulations having been established, the DRC entered into the merits of the dispute. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. 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.

i. Main legal discussion and considerations

19. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that the Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent has overdue payables towards him detailed as follows:

a. EUR 38,500 as outstanding salaries;

b. EUR 100,000 as match participations and squad selection bonuses;

c. EUR 4,000 as goals/assists bonus;

d. EUR 30,000 as the relegation bonus.

20. Subsequently, the DRC took into account that the Respondent, for its part, while filing its answer to the claim, failed to timely present translations into one of the official FIFA languages of the payment receipts. To this end, the DRC noted that such translations were filed solely after the relevant deadline given to the club had expired. In this way, the DRC considered that the Respondent failed to meet its burden of proof in line with article 9 par. 3 of the Procedural Rules.

21. Having said this, the DRC acknowledged that, in accordance with the employment contract provided by the Claimant, the Respondent was obliged to pay to the Claimant the following amounts as per contract:

a. EUR 25,000 on 5 February 2020;

b. EUR 25,000 on 10 March 2020;

c. EUR 50,000 on 10 April 2020.

d. EUR 10,000 for every match participation;

e. EUR 5,000 for every game in which the player would be in the squad of 21 players but not participate;

f. EUR 2,000 for every goal or assist;

g. EUR 30,000 in case the Respondent did not relegate to the lower division, provided the Claimant had played in at least 5 matches.

22. Taking into account the documentation presented by the Claimant in support of his petition, the DRC concluded that the Claimant had substantiated his claim pertaining to overdue payables with sufficient documentary evidence. What is more, the DRC highlighted that the club admits that some of the amounts sought by the player are in fact due.

23. To this end, the DRC It should be noted that the argumentation of the club regarding the relegation bonus could not be followed since the club, irrespective of the reason, was not de facto relegated. Consequently, the DRC found that the bonus target regarding the (non) relegation of the club hence was unquestionably reached and should be awarded.

24. 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 172,500, broken down as follows:

a. EUR 38,500 as outstanding salaries;

b. EUR 100,000 as match participations and squad selection bonuses;

c. EUR 4,000 as goals/assists bonus;

d. EUR 30,000 as the relegation bonus.

25. In addition, the Chamber established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

26.

27. Consequently, the DRC 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 172,500.

28. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the Chamber decided 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

29. In continuation, taking into account the applicable Regulations, the DRC 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.

30. In this context, the DRC took particular note of the fact that, on 2 November 2020, the Claimant put

the Respondent in default of payment of EUR 220,000, setting a time limit expiring of at least 10

days in order to remedy the default.

31. Consequently, the DRC 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).

32. In addition, as established above, the Chamber concluded that the Respondent had delayed a due

payment for more than 30 days without a prima facie contractual basis.

33. The DRC further established that by virtue of art. 12bis par. 4 of the Regulations it has competence

to impose sanctions on the Respondent. On account of the above and bearing in mind that the

Respondent was found to have owed overdue payables in 6 different occasions, the DRC decided to

impose a fine on the Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations.

Furthermore, taking into consideration the amount due of EUR 172,500, the DRC regarded a fine

amounting to CHF 45,000 as appropriate and hence decided to impose said fine on the Respondent.

34. In this connection, the DRC 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

35. Finally, taking into account the applicable Regulations, the 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.

36. In this regard, the DRC 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.

37. 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,

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 Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

38. The DRC 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.

39. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties.

d. Costs

40. 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.

41. 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.

IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Gelmin Javier Rivas Boada, is partially accepted.

2. The Respondent, MKE Ankaragucu SK, has to pay to the Claimant the following amounts:

- EUR 38,500 as outstanding remuneration plus 5% interest p.a. as from 12 April 2020 until the date of effective payment.

- EUR 134,000 as outstanding remuneration plus 5% interest p.a. as from 27 July 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:

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.

7. The Respondent is ordered to pay a fine of CHF 45,000. The fine is to be paid within 30 days of notification of the present decision to FIFA to the following bank account with reference to case nr. 20-01659/eam:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

8. This decision is rendered without costs.

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