FIFA - Decisión disputa Joseph Attamah 01062023

REF. FPSD-8071

Decision of the Dispute Resolution Chamber passed on 1 June 2023 regarding an employment-related dispute concerning the player Joseph Attamah

COMPOSITION:

Frans de Weger (the Netherlands), Chairperson Johan van Gaalen (South Africa), Member Calum Beattie (Scotland), Member

CLAIMANT:

Joseph Attamah, Ghana Represented by Livida Sport Limited

RESPONDENT:

Fatih Karagumruk AS, Türkiye Represented by Sami Dinc pg. 2

REF. FPSD-8071

I. Facts of the case

1. On 28 January 2020, the Ghanaian player, Joseph Attamah (hereinafter: the player or the Claimant) and the Turkish club, Fatih Karagumruk AS (hereinafter: the club or the Respondent) concluded an employment contract (hereinafter: the conract), valid as from the date of its signature until the end of the 2019/2020 season in Türkiye.

2. Clause 6 of the contract reads as follows:

3. On 1 January 2020 Turkish tax legislations concerning athletes were amended and the following obligations introduced (hereinafter: the tax provision): - Athletes earning over 600,000 TL gross (approx.: EUR 32,600) per year were required to file an annual tax declaration. Beforehand no such filing requirement existed; - Withholding tax rates on salaries paid to players by Clubs in the Super League increased from 15% to 20% (for contracts signed after 1 November 2019); - The 20% withholding tax declared by the Super League clubs could be deducted from the players’ 40% income tax liability. Clubs were required to pay the 20% withholding tax directly to the tax office. Importantly, if the clubs did not pay the relevant withholding tax to the tax office, the tax office could seek to collect such sums from the players.

4. On 5 July 2022, Mr Attamah received a tax bill from the Turkish tax authorities in respect of

his employment at Karagumruk and Kayseri Spor during the year 2020, the latter being the club with which the player was contractually engaged upon expiration of the contract, where it is stated that the following taxes shall be paid by the player: - TL 6,830,726 which includes (i) income tax of TL 2,742,162; (ii) a Tax Loss Penalty of 2,742,162; and (iii) interest up until 30 October 2022 of TL 1,346,402 in respect of 2020. pg. 3

REF. FPSD-8071

5. On 14 July 2022, the player contacted the Respondent, requesting the latter to investigate the situation concerning the tax request made by the Turkish tax authorities.

6. By means of his letter of 1 September 2022, the player put the club in default of payment in the amount of EUR 19,238 corresponding to the payment of the club’s alleged tax obligations and legal fees, thereby granting the club a deadline of 10 days to cure its breach; to no avail.

7. On 3 October 2022, the Claimant put the Respondent in default of payment, again.

8. On 5 October 2022, the club replied, stating that the tax provisions entered into force on 1

April 2022, i.e. once the contract had been concluded, and that – therefore – the inherent tax obligations are not applicable to the contract.

9. Thereto, the player replied on 6 October 2022, stating that the tax provisions entered into force on 1 January 2020, i.e. before the contract was concluded and – therefore – the club is liable to pay the amounts requested by the Turkish tax authorities

II. Proceedings before FIFA

a. Position of the Claimant

10. On 1 November 2022, the player lodged a claim against the club before FIFA, requesting to be awarded outstanding remuneration in the total amounts of TL 345,634 and EUR

5,500, plus 5% interest p.a. on the amount of TL 345,634, broken down by the Claimant as follows: - TL 138,753 as principal amount due as taxes derived from the player’s Personal Income Tax as per the tax bill; - TL 138,753 corresponding to the penalty imposed by the Turkish tax authorities as per the tax bill; - TL 68,123 as default interest already accrued; - EUR 2,000 as legal costs before the Turkish tax authorities; - EUR 3,500 as legal costs before the Football Tribunal.

11. In his claim, the player argued that “it was well known to the Club when Mr Attamah agreed to join it, that he did so strictly on the basis that the salary negotiated with him was the amount he would receive ‘net’ of all taxes, i.e. following the payment and/or deduction of any and all pg. 4

REF. FPSD-8071 applicable taxes. Appreciating that this was indeed the Player’s expectation and that he relied on the Club’s representations in this respect, the Club failed to advise the Player that he would be required to file an annual tax declaration, refused to pay the withholding tax directly to the tax authorities, and has since declined to pay the sums the Player requires to cover his income tax liability. Such conduct amounts to a clear breach of the implied term of trust and confidence and demonstrates bad faith on the part of the Club”.

12. In addition, the player stressed that “the promise of receiving a net salary is understood by foreign players to mean that all income related tax liabilities are being covered by the club. It would therefore appear that clubs such as Karagumruk are hoping to avoid liability through fraudulent or negligent misrepresentation”.

13. As to the allocation of the amount due by the Respondent, as opposed to the amount due by the Turkish club Kayseri Spor, the Claimant provided a tax expert report (hereinafter: the tax report; document on file), displaying the amounts due by each of said Turkish clubs

as follows: - Respondent’s tax liability: TL 345,635; - Kayseri Sport’s tax liability: TL 6,485,092.

14. The player wished to underscore that he “has as yet been unable to pay the tax bill, and interest continues to accrue on the principal tax liability and penalty at a rate of 2.5% per month, effective from 21 July 2022 (up from the previous rate of 1.6% per month)”.

b. Position of the Respondent

15. In its reply, the club held – inter alia – the following: - That, in accordance with art. 30/3 of the “Turkish Rescript of Income Tax”, the club was only responsible to “pay the stoppage rates which were born in connection with the amounts” included in the contract, together with the club’s obligation to pay the player’s remuneration net, which the club alleged having done; - That taxes are the sole responsibility of individuals; - That the club made “tax base increase for the years 2016 – 2020 which also includes the employment period of the Claimant with the Respondent”; - That the Respondent has no due and unpaid obligations towards the Claimant and, therefore, the claim of the Claimant shall be rejected. pg. 5

REF. FPSD-8071

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

16. 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 1 November 2022 and submitted for decision on 1 June 2023. Taking into account the wording of art. 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.

17. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (March 2022 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 player from Ghana and a club from Türkiye.

18. 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 Players (March 2023 edition), and considering that the present claim was lodged on 1 November 2022, the July 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

19. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 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 art. 13 par. 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 Transfer Matching System (TMS).

c. Merits of the dispute

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

pg. 6

REF. FPSD-8071

1. Main legal discussion and considerations

21. The foregoing having been established, the Chamber moved to the substance of the matter and noted that, whereas the Claimant argues that the Respondent shall be ordered to pay the relevant amount of the sum claimed by the Turkish tax authorities via its notice of 5 July 2022, which corresponds to TL 345,635 (approx. EUR 18,7645) as per the tax report, plus interests; the Respondent argues that it duly proceeded with the payment of the taxes in accordance with art. 30/3 of the Turkish Rescript of Income Tax and that the obligation to pay Personal Income Tax corresponds to the employee.

22. In this context, the Chamber underscored that clause 6 of the contract is crystal-clear when stipulating that the player’s remuneration must be paid net and that the club would assume every tax obligation in connection therewith before the Turkish tax authorities.

In this respect, the DRC further acknowledged that it remains undisputed that the Turkish tax authorities, on 5 July 2022, urged the player to proceed with the payment of TL 6,830,726 concerning taxes (Personal Income Tax) and a penalty for non-payment.

23. In addition, the Chamber observed that the Claimant has duly met his burden of proof cf. art. 13 para. 5 of the Procedural Rules, when providing: the tax bill and the tax report indicating the allocation of the amount due by the Respondent in connection with the Claimant’s income tax during the fiscal year 2020 (which was not paid by the Respondent despite its obligation to do so under clause 6 of the contract), as well as a penalty in an amount equal to the principal outstanding amount.

24. Moreover, the Chamber noted that the Respondent failed to provide a copy of the law to which it referred, preventing the Football Tribunal from assessing whether the payments with which it allegedly proceeded were sufficient under the application of said legal text.

1. Consequences

25. Having stated the above, the members of the Chamber turned their attention to the question of the consequences of such unjustified breach of contract committed by the

Respondent.

26. In view of the abovementioned considerations and in application of the legal principle pacta sunt servanda, the Chamber decided that the Respondent shall be ordered to pay to the Claimant outstanding remuneration in the amount of TL 345,629 (principal outstanding taxes, tax loss penalty and interest until 5 July 2022),.

27. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amounts as from 6 July 2022 until the date of effective payment. pg. 7

REF. FPSD-8071

28. In this case, explained the DRC, to award interest on the penalty does not vulnerate the principle of ne bis in idem, since the said amount is not hereunder awarded as penalty, but as outstanding remuneration regardless of its consideration as penalty in front of the Turkish tax authorities. iii. Compliance with monetary decisions

29. 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.

30. 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.

31. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the

full amount due (including all applicable interest) to the Claimant within 45 days of notification of the decision, failing which, at the request of the Claimant, 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 Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.

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

33. 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

34. The Chamber referred to art. 25 par. 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. pg. 8

REF. FPSD-8071

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

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

IV. Decision of the Dispute Resolution Chamber

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

2. The Respondent, Fatih Karagumruk AS, must pay to the Claimant the following amount: - TL 345,629 as outstanding remuneration plus 5% interest p.a. as from 6 July 2022 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 art. 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. pg. 9

REF. FPSD-8071

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

7. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero

Chief Legal & Compliance Officer NOTE RELATED TO THE APPEAL PROCEDURE: According to article 57 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 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. 10