FIFA - Decisión disputa Popov 27092023

REF. FPSD-11229

Decision of the Dispute Resolution Chamber passed on 27 September 2023 regarding an employment-related dispute concerning the player Strahil Venkov Popov BY: Gonzalo de Medinilla (Spain) Single Judge of the Dispute Resolution Chamber

CLAIMANT:

Strahil Venkov Popov, Bulgaria Represented by Mr Mikail Hasbek

RESPONDENT:

Eyüpspor Kulübü Derneği, Türkiye Represented by Mr Ercan Sevdimbaş pg. 2

REF. FPSD-11229

I. Facts of the case

1. On 12 January 2022, the Bulgarian player Strahil Venkov Popov (hereinafter: Claimant or player) and the Turkish club Eyüpspor Kulübü Dernegi (hereinafter: club or Respondent) concluded an employment contract (hereinafter: Contract) valid as from the date of termination until 31 May 2023.

2. On 11 September 2022, the Claimant and the Respondent signed a mutual termination and settlement agreement (hereinafter: the Settlement) in accordance with which the parties agreed to mutually depart from the Contract.

3. In accordance with art. 1.2 of the Settlement, the parties agreed as follows: “The Club shall pay to the Player a total net amount of EUR 175,000 and a Turkish Lira instrument corresponding to EUR 12,500 (…) as termination fee in the following instalments: - EUR 12,500 in Turkish Lira by no later than 16 September 2022; - EUR 50,000 net upon signature of this agreement; - EUR 125,000 net on or before 31 March 2023”

4. In accordance with art. 1.5 of the Settlement, the parties agreed that late payments shall be accrued by an interest rate of 5% per month.

5. On 31 March 2023, the final instalment of EUR 125,000 net fell due. All amounts previously due had been remitted on time.

6. On 20 April 2023, the Respondent made a payment of USD 18,000 (corresponding to EUR 16,445) “by hand” to the Claimant.

7. On 18 May 2023, the Respondent made a payment of EUR 21,000 to the Claimant.

8. On 20 July 2023, the Claimant put the Respondent in default and requested payment of EUR 87,555 and corresponding interest within 10 days, to no avail.

II. Proceedings before FIFA

9. On 11 August 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation. pg. 3

REF. FPSD-11229

a. Position of the Claimant

10. According to the Claimant, the Respondent failed to meet the financial obligations under the Settlement despite having been put in default and granted a formal deadline to do so.

11. The Claimant calculated the overall outstanding sum to be EUR 96,970, and reached such conclusion through the following calculation: - Original due amount: EUR 125,000 net, payable by no later than 31 March 2023; - Payment of EUR 16,445 on 20 April 2023, thus reducing the overall debt to EUR 108,555; - Interest accrued between 31 March 2023 and 20 April 2023 on the amount of EUR 125,000 at the monthly interest rate of 5% = EUR 4,166; - Payment of EUR 21,000 on 18 May 2023, reducing the overall debt to EUR 87,555; - Interest accrued between 20 April 2023 and 18 May 2023 on the amount of EUR 112,711 (i.e. sum of EUR 108,555 and EUR 4,166) at the monthly interest rate of

5% = EUR 5,259; Therefore, total debt outstanding = EUR 87,555 + EUR 4,166 + EUR 5,259 = EUR 96,970

12. The Claimant requested the amount of EUR 96,970 with interest of 5% per month – i.e. 60% p.a., in accordance with art. 1.5 of the Settlement – applicable as from 18 May 2023.

b. Position of the Respondent

13. In its reply, the Respondent alleged having remitted the entire amount, although in a delayed manner.

14. The Respondent specified that the delay in payment was caused by financial difficulties resulting from the earthquake which had struck Türkiye earlier this year.

c. Comments of the Claimant

15. The Claimant was invited to provide comments as to the alleged payments made by the

Respondent.

16. In such submission, the Claimant specified that he had not been in receipt of any amounts that he had described as outstanding in his initial claim. He also specified that the Respondent provided no proof of payment of the purportedly remitted amounts.

17. Thus, the Claimant reiterated his request for relief. pg. 4

REF. FPSD-11229

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

18. First of all, the Single Judge of the Dispute Resolution Chamber (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 4 August 2023 and submitted for decision on 27 September 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.

19. Subsequently, the Single Judge 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 (May 2023 edition), he is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Bulgarian player and a Turkish club.

20. Subsequently, the Single Judge 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 (May 2023 edition), and considering that the present claim was lodged on 4 August 2023, the May 2023 edition edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

21. The Single Judge 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 Single Judge 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

22. His competence and the applicable regulations having been established, the Single Judge entered into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. 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. pg. 5

REF. FPSD-11229

1. Main legal discussion and considerations

23. The foregoing having been established, the Single Judge moved to the substance of the matter, and took note of the fact that the parties strongly dispute the payment of certain financial obligations under the Settlement.

24. In this context, the Single Judge acknowledged that his task was to determine whether, based on the evidence presented to him, the amounts claimed had indeed been remitted, or whether the Claimant had a right to request them, as well as the applicable interest.

25. The Single Judge began his deliberations by recalling the arguments of the parties, starting with the Claimant, according to whom the club failed to remit a total amount of EUR 96,970 net, corresponding to the residual amount of EUR 87,555, as well as the interest accrued on late payments. The Single Judge equally took note of the request for annual interest of 60% on any amounts awarded, in accordance with art. 1.5 of the Settlement.

26. On the other hand, the Single Judge observed that the Respondent purported having paid the entire amount, as well as the assertion that the delay to such payment was caused by financial difficulties as a result of the earthquake which had taken place in Türkiye earlier this year.

27. Before entering the evaluation of the parties’ arguments, the Single Judge wished to point to the wording of art. 13 par. 5 of the Procedural Rules, in accordance with which a party that asserts a certain fact also bears the burden of proving its veracity.

28. Having said that, the Single Judge opined that it was the Respondent’s burden of proving that it had, as alleged, remitted the integral amount claimed to the player. Notwithstanding, the Single Judge noted that the Respondent had not provided any evidence of having made such payment(s), such as a bank statement, payment confirmation or cash receipt signed by the player.

29. Equally, the Single Judge recalled that the Claimant, upon request to confirm whether such alleged payment had been received by himself, had stated that he had not received any of

the amounts presented in his initial petition.

30. Consequently, the Single Judge established that the Respondent failed to meet its burden of proving that the amounts alleged as outstanding had been remitted.

31. As for the justification provided by the Respondent, the Single Judge expressed his empathy with the Respondent as to the effects of the earthquake which occurred earlier this year.

Notwithstanding, and with specific reference to the case at hand, the Single Judge deemed that insufficient evidence had been submitted by the Respondent to corroborate its allegation of financial difficulties, to the extent of being unable to comply with the financial pg. 6 REF. FPSD-11229 terms of the Settlement. The Single Judge wished to stress the importance of the principle of pacta sunt servanda.

32. Therefore, the Single Judge concluded that the amount claimed as outstanding by the player had unjustifiably been defaulted upon by the Respondent.

33. Having established this, the Single Judge proceeded to the calculation of the amounts due to the Claimant. In this respect, it was recalled that the principal amount which was due corresponded to EUR 87,555; however, the Claimant also included in his petition interest accrued for late payment, in accordance with art. 1.5 of the Settlement and in the context of two separate transfers of EUR 16,445 on 20 April 2023 and EUR 21,000 on 18 May 2023 respectively.

34. In respect of the above, the Single Judge wished to emphasise that the maximum permissible interest rate in accordance with its own jurisprudence, and under Swiss law, corresponded to 18% p.a.. Therefore, the Single Judge considered it appropriate to reduce the interest rate stipulated in the Settlement from 60% p.a. to 18% p.a..

35. As for the sum on which the interest may be appliable, the Single Judge noted that the Claimant, in addition to the principal sum of EUR 87,555, requested interest accrued in between the respective payments of 20 April 2023 and 18 May 2023.

36. In this respect, with the rate outlined as applicable above, Single Judge deemed that the following additional interest may be established as having been accrued until 18 May 2023

(the date of the last payment): - Payment of EUR 16,445 on 20 April 2023, interest accrued between 1 April 2023 (first overdue date) and 20 April 2023 on the amount of EUR 125,000 at the rate of 18% p.a. = EUR 1,171.25; therefore, total debt at this point = EUR 125,000 – EUR 16,445 + EUR 1,171.25 = EUR 109,726.25 - Payment of EUR 21,000 on 18 May 2023, interest accrued between 20 April 2023 and 18 May 2023 on the amount of EUR 109,726.25 at the rate of 18% p.a. = EUR 1,515.10; therefore, total debt at this point = EUR 109,726.25 – EUR 21,000 + EUR 1,515.10 = EUR 90,241.35

37. Taking the above into consideration, therefore, the Single Judge concluded that the final amount payable to the Claimant corresponded to EUR 90,241.35.

38. Accordingly, and with the principle of pacta sunt servanda in mind, the Single Judge decided that the Respondent must pay said amount to the Claimant as outstanding remuneration. pg. 7

REF. FPSD-11229

39. Lastly, the Single Judge decided that the Respondent must pay to the Claimant interest applicable on said amount at the annual rate of 18% as from 18 May 2023 until the date of effective payment. ii. Art. 12bis of the Regulations

40. In continuation, 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.

41. To this end, the Single Judge confirmed that the player put the club in default of payment of the amounts sought, which had fallen due more than 30 days before, and granted the club a 10-day deadline to cure such breach of contract.

42. Accordingly, the Single Judge confirmed that the club had delayed a due payment without a prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the Regulations was met in the case at hand.

43. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the club. On account of the above and bearing in mind that this was the first offence by the club within the last two years, the Single Judge decided to impose a warning on the club in accordance with art. 12bis par. 4 lit. a) of the

Regulations.

44. In this connection, the Single Judge highlighted that a repeated offence will be considered as an aggravating circumstance and lead to a more severe penalty in accordance with art. 12bis par. 6 of the Regulations. iii. Compliance with monetary decisions

45. 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.

46. 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. pg. 8

REF. FPSD-11229

47. 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.

48. 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.

49. 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

50. 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.

51. 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.

52. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 9

REF. FPSD-11229

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Strahil Venkov Popov, is partially accepted.

2. The Respondent, Eyüpspor Kulübü Derneği, must pay to the Claimant the following amount(s): - EUR 90,241.35 as outstanding remuneration plus 18% interest p.a. as from 18 May 2023

until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. A warning shall be imposed on the Respondent.

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

6. 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.

7. 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.

8. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 10

REF. FPSD-11229

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

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