Dispute Resolution Chamber
Texto da decisão
REF FPSD-2238
Decision of the
Dispute Resolution Chamber
passed on 3 June 2021
regarding an employment-related dispute concerning the player Yaw Ackha
COMPOSITION:
Clifford J. Hendel (USA) / (France), Chairman
Mohamed Muzammil (Singapore), member
Stefano Sartori (Italy), member
CLAIMANT:
Yaw Ackha, Ghana
Represented by Pedro Macieirinha
RESPONDENT:
Buyuksehir Belediye Erzurumspor, Turkey
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I.
FACTS OF THE CASE
1.
On 1 February 2021, the Claimant and the Respondent signed a contract, valid between 1
February 2021 and 31 May 2021, based on which the Claimant was entitled to a total
amount of EUR 85,000, payable as follows:
- EUR 5,000 as ‘advance payment’ on 28 February 2021;
- EUR 16,000 on 28 February 2021;
- EUR 16,000 on 30 March 2021;
- EUR 16,000 on 30 April 2021;
- EUR 16,000 on 30 May 2021;
- EUR 16,000 on 30 June 2021.
2.
Art. 3 of the contract holds the following clause: ‘Disciplinary procedure: 3.1 Receipt of the
BB Erzerumspor Professional Football Internal Disciplinary and Regulations. The player
herewith accepts and undertakes that he shall sign and take receipt of the BB Erzerumspor
Professional Football Internal Disciplinary and Regulations (which is an additional part of the
present Employment Contract) as annex to the present Employment Contract […]’.
3.
Art. 3.6 of the contract holds the following clause: ‘Club’s right to set off: if at the end of
the Disciplinary Proceedings initiated against the player, a justified fine is imposed on the
player and the relevant fine becomes final, enforceable and binding, the relevant fine shall
be deemed as a binding debt owed by the Player to the Club thus the relevant fine shall
take form of a forfeiture of wages of a corresponding amount so that the amount forfeit
shall not become payable to the player. Forfeiture shall take place in relation to the monthly
instalment of the player’s remuneration falling due next of the date on which the notice of
disciplinary decision that is final, enforceable and binding is served on him. As a result the
Club shall have the right to set off the relevant fine imposed on the player against the
player’s contractual remuneration’.
4.
On 1 March 2021, the Claimant and the Respondent concluded a termination agreement,
based on which the parties agreed that the contract between them would be terminated
with immediate effect and according to which the Claimant was entitled – based on art. 3
of the termination agreement - to the amount of EUR 40,000, payable on 2 March 2021
‘by means of a wire transfer to Ziraat Bankasi account of Player’.
5.
What is more, art. 4 of the termination agreement holds the following clause: ‘The Parties
agree to terminate the contract dated 1.2.2021 with their mutual consents regardless of
the name under which without claiming any further remuneration and any further
compensation payable from each other (except for the amounts payable to the player as
specified under article 3). In conjunction with the conclusion of the present agreement, the
contract dated 1.2.2021 concluded between the parties concerned will immediately be
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ended with its all effects and consequences and also any agreement, protocol and/or
consensus, which determined employment relationship between the Parties, become
invalid. The player accepts, declares and undertakes, by reason of the employment
relationship with BB Erzerumspor and regardless of the name under which, there is not any
rights and receivables from BB Erzerumspor (except for the amounts payable to the player
as specified under article 3) to waive from any further compensation above and any other
claims irrevocably, to release BB Erzerumspor completely, absolutely and irrevocably from
all the future liabilities resulting from the execution of contract dated 1.2.2021’.
6.
Art. 9 par. 6 b) of the Respondent’s Disciplinary Regulations holds the following clause: ‘In
case of two cautions received during the same match incurring a red card, the player will
not be entitled to per match salary and bonus payment for the relevant match without
considering the reasons of the yellow cards. In addition to this, he will be fined as his cost
per match’.
7.
On 11 March 2021, the Claimant put the Respondent in default for the outstanding amount
of EUR 40,000, providing the Respondent a 10 days’ deadline to remedy its default,
however to no avail.
II.
PROCEEDINGS BEFORE FIFA
8.
On 6 April 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
The claim of the Claimant
9.
On 6 April 2021, the Claimant lodged a claim against the Respondent, requesting that the
amount of EUR 40,000, plus 5% interest p.a. shall be awarded to him.
10.
In his claim, the Claimant explains that the Respondent failed to timely pay him the amount
of EUR 40,000, despite having put the club in default.
b.
Position of the Respondent
11.
In its reply, the Respondent argued that on 7 February 2021, the Claimant received a red
card in the match against Kayserispor. As a result, Disciplinary Proceedings were opened
against the player on 15 February 2021, when he was invited to provide his statement as
to the alleged violation of art. 9 par. 6 b) of the Respondent’s internal Disciplinary
Regulations.
12.
According to the Respondent, after having received the Claimant’s position on 18 February
2021, it imposed a fine of EUR 4,473 on the Claimant on 22 February 2021, because of the
violation of art. 9 par. 6 b) of the Disciplinary Regulations.
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13.
Said fine was consequently appealed by the Claimant on 1 March 2021, however on 3
March 2021, the appeal was rejected and a motivate decision was issued, confirming that
the fine of EUR 4,473 was correctly imposed.
14.
On 5 March 2021, the Respondent requested the Claimant to pay the fine of EUR 4,473,
however to no avail.
15.
The Respondent argues that the Claimant was provided with its Disciplinary Regulations on
15 February 2021 and that it followed a due process while investigation the Claimant’s red
card. Furthermore, the Respondent is of the opinion that the fine is not excessive, as it is
based on the calculation of the average salary costs of the Claimant for one match (EUR
85,000 as total contractual value divided by 19 matches to played by the Respondent).
16.
What is more, the Respondent is of the opinion that the fine of EUR 4,473 can be validly
set off against the outstanding amount of EUR 40,000, as a result of which only an amount
of EUR 35,527 is due to the Claimant.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
17.
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 6 April 2021 and submitted for
decision on 3 June 2021. Taking into account the wording of art. 21 of the 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.
18.
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. a) and
b) of the Regulations on the Status and Transfer of Players (edition 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 Ghanaian player
and a Turkish club.
19.
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 February 2021), and
considering that the present claim was lodged on 6 April 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
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b.
Burden of proof
20.
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.
21.
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.
22.
Merits of the dispute
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
23.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute whether or not the alleged fine
of EUR 4,473 can be validly set off against the amount of EUR 40,000, which is due as per
the termination agreement.
24.
In this context, the Chamber acknowledged that it its task was to determine whether there
were amounts due to the Claimant by the Respondent, and if so, which amounts this would
be.
25.
First of all, the members of the Chamber analysed the documentation on file, and concluded
that it remained uncontested between the parties that based on the settlement agreement,
an amount of EUR 40,000 was due by the Respondent to the Claimant.
26.
Furthermore, the members of the Chamber analysed the fine of EUR 4,473 imposed on 22
February 2021 by the Respondent on the Claimant, because of the violation of art. 9 par. 6
b) of the Disciplinary Regulations. In this respect, it appeared to the members of the
Chamber prima facie that said fine was imposed on the Claimant after following a due
process.
27.
What is more, the Chamber however noted that the parties – although both being perfectly
aware of the fact that a fine of EUR 4,473 was imposed on the Claimant - choose to not
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mention anything regarding the payment of said fine in the settlement agreement, which
was concluded between the parties on 1 March 2021.
28.
The members of the Chamber were of the unanimous opinion that, by failing to address
the fine of EUR 4,473 explicitly in the settlement agreement, there is no contractual and /or
legal basis for the Respondent to set off the fine of EUR 4,473 against the payment of the
amount of EUR 40,000. As a result, the Chamber decided to not upheld the argumentation
in this respect submitted by the Respondent.
ii. Consequences
29.
Keeping in mind the foregoing considerations, the Chamber decided that the amount of
EUR 40,000 is due by the Respondent to the Claimant, based on the settlement agreement.
30.
As a result, the Chamber decided to accept the Claimant’s claim and the amount of EUR
40,000 to him.
31.
What is more, based on the Chamber’s well-established jurisprudence, the members of the
DRC decided also award 5% interest p.a. on the abovementioned amount of EUR 40,000
as from 3 March 2021.
iii. Compliance with monetary decisions
32.
Finally, taking into account the consideration under number 30. above, the Chamber
referred to par. 1 lit. 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.
33.
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.
34.
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. 24bis par. 2, 4, and 7 of the Regulations.
35.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
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36.
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. 8
of the Regulations.
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IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Yaw Ackha, is accepted.
2.
The Respondent, Buyuksehir Belediye Erzurumspor, has to pay to the Claimant, the following
amount:
- EUR 40,000 as outstanding amount, plus 5% interest p.a. as from 3 March 2021 until the
date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account set out in the
enclosed Bank Account Registration Form.
4.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not paid 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 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 paid by the end of
the of the three entire and consecutive registration periods.
5.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
6.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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:
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