DRC Overdue Payables
Texto da decisão
REF FPSD-3860
Decision of the
Dispute Resolution Chamber
passed on 12 November 2021
regarding an employment-related dispute concerning the player Afriye
Acquah
COMPOSITION:
HENDEL, Clifford J. (USA & France), Deputy Chairperson
ATILIO TARABORELLI, Alejandro (Argentina), Member
MARIS JUNCOS, Stella (Argentina), Member
CLAIMANT:
Afriye Acquah, Saudi Arabia
Represented by Cesare Di Cintio
RESPONDENT:
Yeni Malayiaspor, Turkey
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REF FPSD-3860
I.
Facts of the case
1.
The Saudi player, Mr Afriye Acquah (hereinafter: the player or the Claimant) and the Turkish
club, Yeni Malayiaspor (hereinafter: the club or the Respondent) concluded an employment
contract valid until 31 May 2021 (hereinafter: the employment contract).
2.
In accordance with clause 3 of the employment contract, the player would be entitled, inter
alia, to the following amounts:
a. 2019/2020 season: a total amount of EUR 920,000 net, being (i) a sign-on fee of
EUR 195,000 net due by the signature of the contract; and (ii) 10 equal and monthly
instalments of EUR 72,500 net each starting on 30 September 2019 and finishing
on 30 June 2020.
b. 2020/2021 season: a total amount of EUR 800,000 net, being (i) a down payment
of EUR 75,000 net on 25 August 2020; and (ii) 10 equal and monthly instalments
of EUR 72,500 net each starting on 30 September 2020 and finishing on 30 June
2021.
3.
On 9 July 2021, the player put the club in default and granted it with a 10 days’ deadline in
order to proceed the payment of EUR 490,000, corresponding to the balance of the his
salaries for the 2020/2021 season.
4.
On 2 August 2021, the player sent the club a second default notice with the same content
of the previous one.
5.
On 13 August 2021, the player sent the club a third default notice, acknowledging that the
club had failed to proceed the payment of the relevant amounts.
II. Proceedings before FIFA
6.
On 30 September 2021, the player lodged the claim at hand before FIFA requesting payment
of his outstanding remuneration amounting to EUR 490,000 plus “compensation of damage
for late payments”.
7.
In his claim, the player explained that he should be entitled to the total amount of EUR
800,000 as regards to the 2020/2021 season of the employment contract, however that the
club did only proceed the payment of EUR 310,000, as follows:
a.
b.
c.
d.
e.
EUR 72,500 on 18 December 2020;
EUR 27,500 on 18 December 2020;
EUR 72,500 on 26 January 2021;
EUR 117,500 on 18 February 2021;
EUR 10,000 on 24 May 2021; and
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REF FPSD-3860
f. EUR 10,000 on 25 May 2021.
8.
Therefore, the player referred to article 12bis of the FIFA Regulations on the Status and
Transfer of Players (RSTP) and claimed that: (i) he should be awarded the outstanding
remuneration; and (ii) sporting sanctions should be imposed on the club.
9.
In its reply, the club confirmed that the player was under contract until 31 May 2021 and
informed that it had already delivered him payments during the term of their employment
relationship. In doing so, the club requested the player’s claim to be entirely rejected.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
10. 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 30 September 2021 and submitted for
decision on 12 November 2021. Taking into account the wording of art. 34 of the October
2021 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 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 (August 2021 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 an Saudi player and a
Turkish club.
12. 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 (August 2021 edition), and
considering that the present claim was lodged on 30 September 2021, the aforementioned
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
13. 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
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by the parties, including without limitation the evidence generated by or within the Transfer
Matching System (TMS).
c. Merits of the dispute
14. 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.
i. Main legal discussion and considerations
15. The foregoing having been established, the Chamber moved to the substance of the matter
and took note that the player lodged the claim at hand against the club seeking payment of
the balance of his remuneration for the 2020/2021 season (i.e. EUR 490,000), accrued by the
relevant interest.
16. On the other hand, the DRC was also mindful of the club’s position according to which it
complied with all the financial duties under the employment contract.
17. Having the above in mind, the members of the Chamber recalled the content of article 13,
par. 5 of the Procedural Rules and turned their attention to the documentation on file. In
doing so, the DRC acknowledged that the club did not advance any convincing evidence
capable of rebutting the player’s allegations as to the outstanding remuneration.
18. In particular, the Chamber also referred to art. 13, par.1 of the Procedural Rules and observed
that the club did only provide untranslated and unspecified evidence of payment, which could
not be deemed as a valid proof of compliance. For the sake of completeness, the DRC found
it noteworthy that the payments allegedly made by the club were already considered in the
player’s statement of claim and calculation.
19. In view of the foregoing and in line with the general legal principle of pacta sunt servanda,
the members of the Chamber unanimously decided that the player should be entitled to the
outstanding remuneration sought.
20. Furthermore, taking into consideration the player’s request as well as the constant practice
of the Football Tribunal in this regard, the DRC decided to award the player interest at the
rate of 5% p.a. on the outstanding amount as from the date of the claim (i.e. 30 September
2021) until the date of effective payment.
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ii. Art. 12bis of the Regulations
21. In continuation, the DRC 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.
22. To this end, the DRC confirmed that the player put the club in default of payment of the
amounts sought, which had fallen due form more than 30 days, and granted the club with
10 days to cure such breach of contract.
23. The DRC further established that by virtue of art. 12bis par. 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 Respondent in
accordance with art. 12bis par. 4 lit. c) of the Regulations.
24. Furthermore, the DRC regarded a fine amounting to USD 30,000 as appropriate and hence
decided to impose said fine on the club.
25. In this connection, the DRC wished to highlight that a repeated offence will be considered as
an aggravating circumstance and lead to more severe penalty in accordance with art. 12bis
par. 6 of the Regulations.
iii. Compliance with monetary decisions
26. 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.
27. 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.
28. 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.
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29. 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.
30. 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
31. 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.
32. 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.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Afriye Acquah, is accepted.
2.
The Respondent, Yeni Malayiaspor, has to pay to the Claimant, the following amount:
- EUR 490,000 as outstanding remuneration plus 5% interest p.a. as from 30 September 2021
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 the ban shall
be 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
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 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7. The Respondent is ordered to pay a fine of USD 30,000 to FIFA within 30 days of the
notification of this decision. Such payment is to be made to the bank account below with
reference to the present proceedings:
UBS Zurich
366.677.01U (FIFA Players’ Status)
SWIFT: UBSWCHZH80A, Clearing number 230, IBAN: CH 27 0023 0230 3666 7701U
8. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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