FIFA - Decisión disputa Sainz Eguskiza 31082023

REF. FPSD-10900

Decision of the Dispute Resolution Chamber passed on 31 August 2023 regarding an employment-related dispute concerning the player Borja Sainz Eguskiza BY: Alejandro Atilio Taraborelli, Argentina

CLAIMANT:

Borja Sainz Eguskiza, Spain Represented by Nazım Burçin Çelen

RESPONDENT:

Giresunspor, Türkiye Represented by Ercan Sevdimbaş pg. 2

REF. FPSD-10900

I. Facts of the case

1. On 29 July 2022, the Spanish player Borja Sainz Egusquiza (hereinafter: the player or the Claimant) and the Turkish club, Giresunspor (hereinafter: the club or the Respondent) concluded an employment contract valid as from the date of signature until 31 May 2025

(hereinafter: the Employment Contract).

2. Pursuant to article 6.1 of the Annexe to the Employment Contract, the club undertook to pay the player the following amounts: • For season 2022/2023: total of EUR 380,000 net, payable in 10 monthly instalments of EUR 38,000 net each between August 2022 until May 2023; • For season 2023/2024: total of EUR 400,000 net, payable in 10 monthly instalments of EUR 40,000 net each between August 2023 until May 2024; • For season 2024/2025: total of EUR 475,000 net, payable in 10 monthly instalments of EUR 47,500 net each between August 2024 until May 2025; • Bonuses: EUR 25,000 net “in case the player plays at least 25 official TFF Super League o matches in first 11 of the club during the relevant football season”; and

EUR 25,000 net “in case the player makes 10 or more goals and/or assists in the o TFF Super League matches of the club during a football season”.

3. On 7 June 2023, the club’s team played its last official match for the Turkish Super League.

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

II. Proceedings before FIFA

5. 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

6. According to the player, the club incurred in multiple breaches of its financial duties, which should be accordingly cured. Specifically, the player claimed to be entitled to the following amounts: pg. 3

REF. FPSD-10900 • EUR 38,000 as the salary of May 2023; • EUR 25,000 as the bonus for having played in at least 25 official matches of the Turkish Super League; and • EUR 25,000 as the bonus for having made / assisted at least 10 goals.

7. The player’s requests for relief were as follows, quoted verbatim: “7.1. The Claimant request your Chamber to make a decision that the Respondent has to pay the overdue net amount of €88.000,000 (eighty-eight thousand Euro) as of today with its interest at the rate of 5% per annum as from the dates stipulated herein below until the date of effective payment.  38.000,00 – Euro Monthly salary of May 2023 (Due Date: 31.05.2023)  25.000,00 – Euro Attendance Bonus Fee (Due Date: 07.07.2023)  25.000,00 – Euro Goal Bonus Fee (Due Date: 07.07.2023)

7.2. In consideration of the fact that the Respondent caused the Claimant to file the case herein, we would like to request your Chamber to make a decision that the judicial costs and the legal fees that the Claimant is faced shall be fully paid by the Respondent”. b. Position of the club

8. On 2 August 2023, the club filed its reply to the claim of the player and inter alia alleged that the conditions for the sporting bonuses were not met.

9. The club did not file any supporting documentation and requested the claim to be rejected.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

10. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter: the 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 12 July 2023 and submitted for decision on 31 August 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.

11. 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 par. 1 lit. b) of pg. 4

REF. FPSD-10900 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 Spanish player and a Turkish club.

12. 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 12 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

13. 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 he may consider evidence not filed by the parties, including without limitation the evidence generated by or within the TMS.

c. Merits of the dispute

14. The 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.

1. Main legal discussion and considerations

15. The foregoing having been established, the Single Judge moved to the substance of the matter and took note of the fact that it pertains to overdue payables consisting of salaries and bonuses.

16. In particular, the Single Judge observed that the player claimed to be entitled to EUR 88,000 as outstanding salaries and bonuses under the Employment Contract. The club, on the other hand, limited itself to dispute the player’s entitlement to the bonuses requested, however without providing any counterevidence and/or convincing argumentation in that it failed to meet its burden of proof in line with art. 13, par. 5 of the Procedural Rules. pg. 5

REF. FPSD-10900

17. Consequently, the Single Judge determined that the player was entitled to the amounts sought on the basis of the legal principal of pacta sunt servanda. Furthermore, taking into consideration the player’s request as well as the constant practice of the Football Tribunal in this regard, the Single Judge decided to award the player interest at the rate of 5% p.a. on the outstanding amounts, as follows: • over the outstanding salary as from the first day of the subsequent month; and • over the bonuses as from the 31st day following the official end of the season 2022/2023 in Türkiye, namely 31 July 2023.

18. In conclusion, the Single Judge decided that the claim of the player should be partially accepted. ii. Compliance with monetary decisions

19. Finally, taking into account the applicable Regulations, the Single Judge 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.

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

21. Therefore, bearing in mind the above, the Single Judge 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.

22. 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.

23. 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. 24 par. 8 of the Regulations. pg. 6

REF. FPSD-10900

d. Costs

24. The Single Judge 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 Single Judge decided that no procedural costs were to be imposed on the parties.

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

26. Lastly, the Single Judge concluded the deliberations by rejecting any other requests for relief made by any of the parties. pg. 7

REF. FPSD-10900

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Borja Sainz Eguskiza, is partially accepted.

2. The Respondent, Giresunspor, must pay to the Claimant the following amount(s): - EUR 38,000 net as outstanding remuneration plus 5% interest p.a. as from 1 June 2023 until 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 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.

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 pg. 8

REF. FPSD-10900

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. 9