FIFA - Decisión disputa Da Luz Junior 14092023

REF. FPSD-10919

Decision of the Dispute Resolution Chamber passed on 14 September 2023 regarding an employment-related dispute concerning the player Sérgio da Luz Junior

COMPOSITION:

Martín Auletta (Argentina), Deputy Chairperson Mario Flores Chemor (Mexico), Member Stella Maris Juncos (Argentina), Member

CLAIMANT:

Sérgio da Luz Júnior, Brazil Represented by Bichara e Motta Advogados

RESPONDENT:

GZT Giresunspor, Türkiye Represented by Ercan Sevdimbaş pg. 2

REF. FPSD-10919

I. Facts of the case

1. On 4 September 2020, the Brazilian player, Sérgio da Luz Júnior (hereinafter: the player or the Claimant), and the Turkish club, GZT Giresunspor (hereinafter: the club or the Respondent), concluded an employment contract (hereinafter: the First Employment

Contract).

2. Pursuant to clause 4.1 of the First Employment Contract, it entered into force on the date of signature and was effective for the seasons 2020/2021 and 2021/2022.

3. According to the First Employment Contract, the club undertook to pay the player inter alia

the following concepts: Season Remuneration Bonuses • EUR 20,000 if the club was promoted to the Super League at the end of the season; EUR 140,000, payable in 10 instalments of EUR 14,000 • EUR 15,000 if the player scored 15 or 2020/2021 each between 31 August more goals in official league matches; 2020 until 31 May 2021. • EUR 10,000 if the player played in the starting eleven in 25 or more official league matches. • EUR 20,000 if the club was promoted

if the club does was not to the Super League at the end of the promoted to the Super season; League: • EUR 15,000 if the player scored 15 or EUR 140,000, payable in 10 more goals in official league matches; instalments of EUR 14,000 each between 31 August • EUR 10,000 if the player played in the 2021 until 31 May 2022. starting eleven in 25 or more official 2021/2022 league matches. if the club was promoted • EUR 15,000 if the player scored 15 or to the Super League: more goals in official league matches; EUR 250,000, payable in 10 • EUR 10,000 if the player played in the instalments of EUR 25,000 starting eleven in 25 or more official each between 31 August league matches. 2021 until 31 May 2022. pg. 3

REF. FPSD-10919

4. In addition, clause 6.5 of the First Employment Contract reads as follows: “6.5. All payments under this contract are net payments and will not be reduced by any tax or other amounts. For the sake of clarity, the club will be always obliged to pay all the taxes and the player shall always receive net the indicated amounts. For the avoidance of doubt, the club shall only be responsible of the income tax, social contributions and other levies accrued in accordance with the Turkish Tax legislation and the club shall not be responsible for any other obligations due to the – including but not limited – additional tax duties, social contributions and/or levies related to the other countries legislations”.

5. On 2 November 2020, the parties concluded an amendment to the First Employment Contract valid as from its signature date (hereinafter: the Amendment). Accordingly, the parties established that the player would also be entitled to the following bonuses during

the season 2021/2022:

“- In case the player will participate in at least 20 official TFF Super League matches in first 11 of the club during the 2021/2022 football season, the club shall pay 75.000,00 – Euro (Seventy-Five Thousand Euros) to the player as bonus payment pursuant to this article. The bonus shall be paid in 30 days following the end of the football season of 2021/2022, in case the player will be entitled bonus pursuant to this clause. - In case the club will not be relegated from TFF Super League at the end of the football season of 2021/2022, the player shall be entitled to 50.000,00 – Euro (Fifty thousand Euro) as bonus payment. The bonus shall be paid in 30 days following the end of the football season of 2021/2022, in case the player will be entitled bonus pursuant to this clause”.

6. On 2 November 2021, the player and the club concluded another employment contract

(hereinafter: the Second Employment Contract).

7. Pursuant to clause 4.1 of the Second Employment Contract, it entered into force on 1 June 2022 and was effective during the football season of 2022/2023 until 31 May 2023 “or any later date on which an official match is played in the respective football season”.

8. According to the Second Employment Contract, the player would be entitled inter alia to

the following amounts: Season Remuneration Bonuses EUR 450,000, payable in • EUR 25,000 in case the player 10 instalments of EUR participated in at least 15 official TFF 2022/2023 45,000 each between 31 Super League matches in the starting August 2022 until 31 May eleven of the club during the season 2023. 2022/2023; pg. 4 REF. FPSD-10919 • EUR 25,000 in case the player contributed with at least 5 goals (assist and goal)

during the season 2022/2023.

9. In February 2023, an earthquake took place in Türkiye, and the Turkish Super League was suspended for 2 weeks as a result.

10. On 13 June 2023, the player put the club in default and requested payment of EUR 135,000,

(i.e., salaries from March until May 2023) within 10 days. The player also reminded the club of his entitlement to EUR 50,000 as bonus for performance due on 7 July 2023.

11. It is to be noted that the receipt of the abovementioned notice was never disputed by the club.

12. On 7 July 2023, the club’s team played its last official match for the Turkish Super League for the season 2022/2023.

13. According to the information available in the FIFA Transfer Matching System (TMS), the season 2022/2023 in Türkiye officially started on 1 July 2022 and finished on 30 June 2023.

II. Proceedings before FIFA

14. On 12 July 2023, the player filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the player

15. In his claim, the player argued that the club incurred in multiple breaches of its financial duties under the First and the Second Employment Contracts. Specifically, the player claimed to be entitled to a total of EUR 210,500 net, broken down as follows: • EUR 15,000 as the balance of the salary of February 2023; • EUR 45,000 as the salary of March 2023; • EUR 45,000 as the salary of April 2023; • EUR 45,000 as the salary of May 2023; • EUR 10,500 as the pro rata salary of June 2023; • EUR 25,000 as “starting line-up bonus”; and

• EUR 25,000 as “goal-assist bonus”.

16. Regarding the salary of June 2023, the player explained that the 2022/2023 season had to be extended until 7 July 2023, entailing that the player should be entitled to the pro rata for the 7 extra days worked (i.e., EUR 10,500). pg. 5

REF. FPSD-10919

17. Likewise, he filed evidence of (i) having been fielded in 29 matches of the Turkish Super League in 2022/2023; as well as (ii) scoring 3 goals and giving 6 assists in the same period.

Therefore, he claimed that the bonuses clauses were unequivocally triggered.

18. The player’s requests for relief were as follows, quoted verbatim: “a) Admit the present claim, implementing a fast-track procedure, pursuant to article 12bis of the FIFA RSTP; b) Order the Club to pay the Player overdue salaries in the net amount of EUR160,500.00

(one hundred sixty thousand and five hundred Euros), plus 5% (five per cent) interest per annum, as specified in Sections IV.A) and IV.B) above; c) Order the Club to pay the Player bonuses in the net amount of EUR50,000.00 (fifty thousand Euros), plus 5% (five per cent) interest per annum, as specified in Sections IV.A) and IV.B) above; d) Sanction the Club in accordance with article 12bis and/or article 24 of the FIFA RSTP; and e) Order the Club to bear all administrative and procedural costs related to this procedure (if any)”. b. Position of the club

19. On 17 August 2023, the club filed its reply to the claim of the player. In doing so, the club

acknowledged owing him the following amounts: a. EUR 150,000 as outstanding salaries from February until May 2023; and b. EUR 50,000 as outstanding bonuses.

20. Notwithstanding the above, the club disputed the player’s entitlement to the pro rata salary of June 2023. It referred to the wording of the contracts and argued that the amounts therein included were calculated for the complete seasons, hence no additional would be due because of a minimum extension of 7 days.

21. Given the above, the club concluded that the claim of the player should be rejected insofar as it refers to the request for EUR 10,500 for the month of June 2023. pg. 6

REF. FPSD-10919

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

22. 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 14 July 2023 and submitted for decision on 14 September 2023. Taking into account the wording of article 34 of the March 2023 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

23. Furthemore, the members of the Chamber referred to article 2 paragraph 1 of the Procedural Rules and observed that in accordance with article 23 par. 1 in combination with article 22 lit. paragraph 1 b) of the Regulations on the Status and Transfer of Players

(May 2023 edition), 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 Brazilian player and a Turkish club.

24. 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 article 26 paragraph 1 and 2 of the Regulations on the Status and Transfer of Players (May 2023

edition) and considering that the present claim was lodged on 14 July 2023, the cited May 2023 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. b. Burden of proof

25. The Chamber recalled the basic principle of burden of proof, as stipulated in article 13 paragraph 5 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 Chamber stressed the wording of article 13 paragraph 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties, including without limitation the evidence generated by or within the TMS.

c. Merits of the dispute

26. Its competence and the applicable regulations having been established; the Chamber entered into the merits of the dispute. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Chamber emphasised that in the following pg. 7

REF. FPSD-10919 considerations it will refer only to the facts, arguments, and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

1. Main legal discussion and considerations

27. The foregoing having been established, the Chamber moved to the substance of the matter, and took note that it pertains to a claim for overdue payables consisting of outstanding salaries and bonuses.

28. While examining the parties’ submissions, the DRC noted that it remained undisputed that the club failed to pay the player his salaries from February until May 2023 (i.e., EUR 150,000 net), plus two sporting bonuses (i.e., EUR 50,000 net), totalling EUR 200,000 net. It was equally also not challenged that the club should be liable to cure its default.

29. Consequently, the Chamber decided that the player should be entitled to the

abovementioned amounts based on the legal principle of pacta sunt servanda, as well as 5% interest p.a. calculated as follows: • Over the outstanding salaries as from the first day of each subsequent month; • Over the bonuses as from the 31st day following the official end of the season 2022/2023 in Türkiye per the TMS (i.e., 31 July 2023) cf. the clear wording of the Amendment to the First Employment Contract.

30. In continuation, the DRC took due consideration that the parties disputed the player’s entitlement to the pro rata salary of July 2023, bearing in mind the 7-days extension due to the earthquake in Türkiye.

31. Accordingly, the Chamber observed that (i) in line with clause 4.1 of the Second Employment Contract, it would be effective until 31 May 2023 “or any later date on which an official match is played in the respective football season”; and (ii) even with the unequivocal extension of the football season due to the earthquake, no additional agreement was ever concluded or even discussed between the parties.

32. As a consequence of the above, the DRC was of the opinion that the remuneration included in the Second Employment Contract was calculated in account of the complete season 2022/2023, until its last match. As such, the Chamber deemed that in case the player intended to be awarded additional amounts different than the ones expressly mentioned in the contracts, he should have sought confirmation by the club in writing. Nevertheless, by failing to do so, the Chamber determined that this specific part of the claim lacked contractual or documentary basis, thus should be rejected.

33. In conclusion, the DRC ruled the claim of the player partially accepted. pg. 8

REF. FPSD-10919 ii. Article 12bis of the Regulations

34. Subsequently, the Chamber referred to article 12bis paragraph 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 article 12bis paragraph 4 of the Regulations.

35. To this end, the Chamber confirmed that on 13 June 2023 the player put the club in default of payment of the amounts sought, when both the salaries of March and April 2023 had already fallen due form more than 30 days; as well as granted it with 10 days to cure such breach of contract.

36. The Chamber further established that by virtue of article 12bis paragraph 4 of the Regulations it has competence to impose sanctions on the club. On account of the above and bearing in mind that the club is a repeat offender, the DRC decided to impose a fine on the club in accordance with article 12bis paragraph 4 lit. c) of the Regulations.

37. Furthermore, the DRC regarded a fine amounting to USD 30,000 as appropriate and hence decided to impose said fine on the club.

38. In this connection, the Chamber wished to highlight that a repeated offence will be considered as an aggravating circumstance and lead to more severe penalty in accordance with article 12bis paragraph 6 of the Regulations. iii. Compliance with monetary decisions

39. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par. 1 and 2 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.

40. 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. The overall maximum duration of the registration ban shall be of up to three entire and consecutive

registration periods.

41. Therefore, bearing in mind the above, the DRC decided that the club must pay the full amount due (including all applicable interest) to the player within 45 days of notification of the decision, failing which, at the request of the player, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become immediately effective on the club in accordance with art. 24 par. 2, 4, and 7 of the Regulations. pg. 9

REF. FPSD-10919

42. The club shall make full payment (including all applicable interest) to the bank account provided by the player in the Bank Account Registration Form, which is attached to the present decision.

43. 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. 24 par. 8 of the Regulations.

d. Costs

44. The Chamber referred to article 25 paragraph 1 of the Procedural Rules, according to which “Procedures are free of charge where at least one of the parties is a player, coach, football agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

45. Likewise, and for the sake of completeness, the Chamber recalled the contents of article 25 paragraph 8 of the Procedural Rules and decided that no procedural compensation shall be awarded in these proceedings.

46. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 10

REF. FPSD-10919

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Sérgio da Luz Junior, is partially accepted.

2. The Respondent, Giresunspor, must pay to the Claimant the following amount(s): - EUR 15,000 net as outstanding remuneration plus 5% interest p.a. as from 1 March

2023 until the date of effective payment; - EUR 45,000 net as outstanding remuneration plus 5% interest p.a. as from 1 April 2023 until the date of effective payment; - EUR 45,000 net as outstanding remuneration plus 5% interest p.a. as from 1 May 2023until the date of effective payment; - EUR 45,000 net as outstanding remuneration plus 5% interest p.a. as from 1 June 2023until the date of effective payment; and - EUR 50,000 net as outstanding remuneration plus 5% interest p.a. as from 31 July 2023 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. Full payment (including all applicable interest) shall be made to the bank account indicated in the enclosed Bank Account Registration Form.

5. Pursuant to article 24 of the Regulations on the Status and Transfer of Players, if full payment (including all applicable interest) is not made within 45 days of notification of this

decision, the following consequences shall apply:

1. The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid. The maximum duration of the ban shall be of up to three entire and consecutive registration periods.

2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in the event that full payment (including all applicable interest) is still not made by the end of the three entire and consecutive registration periods.

6. The consequences shall only be enforced at the request of the Claimant in accordance with article 24 paragraph 7 and 8 and article 25 of the Regulations on the Status and Transfer of Players. pg. 11

REF. FPSD-10919

7. A fine in the amount of USD 30,000 is imposed on the Respondent, which must be paid to FIFA within 30 days of notification of this decision. Such fine must be paid to the

following bank account with a clear reference to the case FPSD-10919: UBS Zurich Account number 230-366677.61N (FIFA Players’ Status) Clearing number 230

IBAN: CH12 0023 0230 3666 7761 N

SWIFT: UBSWCHZH80A

8. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 12

REF. FPSD-10919

NOTE RELATED TO THE APPEAL PROCEDURE: According to article 57 paragraph 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 17 of the Procedural Rules Governing the Football

Tribunal).

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 pg. 13