Labour Disputes
Texto da decisão
REF. FPSD-7177
Decision of the
Dispute Resolution Chamber
passed on 15 February 2023
regarding an employment-related dispute concerning
the player Allyson Aires Dos Santos
BY:
Angela Collins, Australia
CLAIMANT:
Allyson Aires Dos Santos, Brazil
Represented by Sami Dinc
RESPONDENT:
Bandirmaspor, Türkiye
Represented by Ercan Sevdimbaş
pg. 2
REF. FPSD-7177
I. Facts of the case
1.
On 29 June 2021, the Brazilian player Allyson Aires Dos Santos (hereinafter: the Claimant or
player) and the Turkish club Bandirmaspor (hereinafter: the Respondent or club) concluded
an employment contract (hereinafter: the contract) valid as from the same date until 31 May
2022.
2.
Pursuant to art. 6 letter A) of the contract, the Respondent undertook to pay the Claimant
a total remuneration of USD 165,000, broken down as follows:
3.
-
Signing Fee: USD 52,000 net.
-
Salary: USD 112,500 net split into 10 equal instalments of USD 11,250 between 20
September 2021 and 20 June 2022.
Furthermore, under letter B) of the same article, the parties stipulated further bonuses and
benefits as follows:
“Individual bonuses
- In case of starting 21 games in the first 11, the player will be paid USD 20.000
- In case of promotion of the club to Super League at the end of the season, the player will
be paid USD 50.000
All bonus payments including but not limited to playoff, championship, etc. will be paid to
the player in case the player completes the season in the club and not to terminate the
agreement with just cause or without just cause. In case of the early termination of the
agreement with any reason, the player will not be entitled to get any bonus payment.
Ali bonus payments will be due on 31 July 2022, following the end of season.
Additional benefits
- Accommodation and Car Fee: USD 7,000 in 10 equal instalments between 20 August 2021
and 20 May 2022
- Flight tickets: The club will provide 2 Round-trip flight tickets from Brazil to Turkey and
Turkey to BraziI for the player, his wife and son
Match bonuses
pg. 3
REF. FPSD-7177
- For each match, match bonus payments will be determined by the Board of Directors of
the Club.
4.
Moreover, art. 5 of the contract established that:
“j)
The Player agrees to sign and comply with all the applicable Bandirmaspor regulations,
policies and procedures including but not limited to, the Internal Disciplinary Regulations
which may be altered by the Bandirmaspor at any time. The Player hereby agrees that in
case of a breach by the Player of his obligations set forth herein and in the Internal
Disciplinary Regulations, the Bandirmaspor shall be entitled to fine the Player penal sum as
declared and calculated by the Bandirmaspor’s disciplinary regulations, and that the Player
shall pay this penal sum to the Bandirmaspor upon the receipt of the Bandirmaspor’s written
request, and that the Bandirmaspor shall be entitled to set off and compensate for this sum
from or out of the receivables the Player may have with the Bandirmaspor. Besides the fine
as set forth above, the Bandirmaspor is also entitled to seek remedy fer any damage,
incurred by the Bandirmaspor, including the loss of profit, in case the Player is in breach of
his obligations regarding the image rights.
u)
The Player agrees and accept to pay Bandirmaspor EUR 20,000 as compensation for each
breach in case the Player breaches any of his obligations written in this Agreement.
The Player shall pay this amount after 5 days of the receipt of the request letter of
Bandirmaspor shall deduct this compensation from the Player’s receivables.
v)
The Player agrees and accept to sign the Club’s Disciplinary Regulations before the beginning
of the 2021/2022 football season. The Player also agrees and accept that in case the Player
acts against these Disciplinary Regulations and being fined by the Club, the Club is entitled
to deduct this fine from the Player’s due or undue receivable including advance payment,
salary, bonus payments, match bonuses.”
5.
On 2 August 2022, the Claimant sent a letter to the Respondent putting the latter in default
of USD 43,900 as outstanding remuneration and granting a deadline of 10 days to remedy
the alleged breach.
6.
On 12 August 2022, the Respondent replied to the Claimant stating that two sanctions,
amounting respectively to (i) TRY 10,000 and (ii) USD 11,944 plus EUR 20,000 had been
imposed on the Claimant, hence said sums were to be deducted from the outstanding
remuneration.
7.
On the very same date, the Claimant answered to the Respondent arguing that the
mentioned sanctions were invalid and groundless, hence the Claimant would proceed
pg. 4
REF. FPSD-7177
before FIFA in case of persisting non-compliance by the Respondent with its contractual
obligations.
II. Proceedings before FIFA
8.
On 24 August 2022, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
9.
According to the Claimant, the Respondent failed to comply with part of its financial
obligations without any valid reason and in spite of the formal default notice sent by the
player on 2 August 2022.
10. In particular, the Claimant argued that the club did not pay the salaries of May and June
2022, nor the accommodation and car fees due for April and May 2022.
11. Furthermore, the Claimant stated that the Respondent should have paid him a bonus
based on article 6 letter B) of the contract, namely because the player participated in 28
games in the starting line-up during the season 2021/2022.
12. In continuation, the Claimant objected to the legitimacy of the fines alleged by the club on
its letter dated 12 August 2022. In this context, the Claimant first argued that both fines
were imposed in clear violation of the player’s right to be heard, namely without providing
the player with sufficient time for defending himself from the club’s accusations.
13. Secondly, the Claimant pointed out that the mentioned sanctions resulted completely
disproportionate in comparison to the breaches allegedly realized by the player.
14. Accordingly, the Claimant held that such sanctions shall be disregarded and demanded to
be paid all the amounts outstanding under the contract, as follows:
-
USD 11,250 as outstanding salary for May 2022;
USD 11,250 as outstanding salary for June 2022;
USD 700 as outstanding accommodation and car fee for April 2022;
USD 700 as outstanding accommodation and car fee for May 2022;
USD 20,000 as outstanding bonus based on art. 6 let. B) of the contract;
5% interest per annum as from the respective due dates
b. Position of the Respondent
15. In its reply, the Respondent acknowledged the existence of outstanding remuneration in
favor of the Claimant but argued that this should be offset against the fines imposed on
pg. 5
REF. FPSD-7177
the player due to his violation of art. 5 letter j) and u) of the contract as well as the club’s
Disciplinary Regulations.
16. In this context, the Respondent argued that in spite of having expressly accepted the above
mentioned regulations at the beginning of the season, the Claimant displayed a bad
conduct during his stay at the club.
17. In this respect, the Respondent referred that in August 2021 the player disturbed a
teammate at night with loud music and for this reason he was sanctioned with a fine of TRY
10,000 to be deducted from his salary.
18. Secondly, the Respondent reported that during a training session on 21 May 2022, the
player and another teammate entered into a fight, after which both parties were brought
to the police station for a statement and an official complaint.
19. Accordingly, the Respondent declared having invited the Claimant to provide his
explanation of the facts within the following 24 hours, which however did not occur as the
player failed to respect the deadline granted by the club, hence the Respondent deemed
as waived the Claimant’s defence’s right in that occasion.
20. Consequently, the Respondent argued that the Claimant shall be held liable for the offense
dated 21 May 2022 and decided to sanction him with a double fine of USD 11,944 (pursuant
to the club’s Disciplinary Regulations) and EUR 20,000 (in accordance with art. 5 of the
contract).
21. In conclusion, the Respondent requested to deduct a total of USD 34,414.72 from the
Claimant’s outstanding remuneration.
c. Additional comments of the Claimant
22. Inquired by the FIFA General Secretariat upon the sanctions allegedly imposed by the
Respondent, the Claimant objected to the club’s attempt to set-off the relevant outstanding
sums against said fines imposed, arguing in primis that the first fine of TRY 10,000, notified
by the club on 16 August 2021, had already been deducted from the player’ salary in
September 2021, hence it cannot be deducted from the outstanding salaries of May and
June 2022.
23. Secondly, with regard to the double sanction amounting to EUR 20,000 and USD 11,944
and notified to the player on 21 May 2022, the latter insisted that both amounts were
imposed in violation of law principles and procedural rules.
24. In particular, the Claimant argued that the related dispute between him and the teammate
represented indeed an ordinary situation for professional clubs and that in any case the
pg. 6
REF. FPSD-7177
mere subjective statement of another player cannot be considered per se sufficient by a
club to impose a fine on a player.
25. Furthermore, the Claimant underlined once again that such fines were clearly
disproportionate in comparison to the alleged offences and to the player’ salary.
26. Accordingly, the Claimant demanded to disregard the Respondent’s objections and
reiterated his request for relief of USD 43,900 as outstanding remuneration plus 5%
interest p.a. as from the relevant due dates.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether she was competent to deal with the case at hand. In
this respect, she took note that the present matter was presented to FIFA on 24 August
2022 and submitted for decision on 15 February 2023. Taking into account the wording of
art. 34 of the October 2022 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.
28. 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 October 2022 edition), the Single Judge
of 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
Brazilian player and a Turkish club.
29. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (October 2022 edition),
and considering that the present claim was lodged on 24 August 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
30. 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 she may
pg. 7
REF. FPSD-7177
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
31. 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 she will refer only to the facts, arguments, and documentary evidence,
which she considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
32. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that, in principle, the club did not dispute the amount
claimed by the player as outstanding.
33. In this context, the Single Judge noted however that according to the club, the player’s
outstanding remuneration shall be offset against the sanctions imposed by the same club
during the relevant employment relationship.
34. In this respect, the Single Judge first wished to remark that indeed the Claimant was bound
by the club’s Disciplinary Regulations, namely as the contract makes express reference to
those regulations (cf. Articles 5 let. j)) and sets a number of obligations for the Claimant
which were thereto reflected.
35. Nevertheless, the Single Judge was of the opinion that the club’s request for offsetting the
relevant fines against the player’s receivables shall not be welcomed.
36. In particular, regarding the first sanction imposed by the club, the Single Judge noted that
this was notified to the player on 16 August 2021 and specifically indicated that the relevant
fine of TRY 10,000 would have been deducted from the Claimant’s following salary in
September 2021.
37. Accordingly, the Single Judge stressed out that the same fine cannot be now deducted from
salaries claimed by the player in relation to the months of May and June 2022, hence it shall
be disregarded. In particular, the fact that the fine and the corresponding deduction are
not at all contemporary was to the detriment of the club, in that it transpired as an attempt
to simply offset the amounts due to player at a later stage.
pg. 8
REF. FPSD-7177
38. In continuation, the Single Judge moved his attention to the second fine imposed by the
Respondent, allegedly due to the Claimant’s fight with another member of the team on 21
May 2022.
39. In this respect, the Single Judge wished to premise that, in principle, where parties to a
contract agree to a set-off between fines and any amount due by a club to player, as a
matter of principle, any such set-off should not nullify entirely an employee’s right to a basic
salary, nor be applied in an abusive way.
40. In the case at stake, the Single Judge observed that following the alleged breach realized
by the player, the club granted the latter only 24 hours to provide his position on the
matter, after which it deemed the player’s right to defense as withdrawn.
41. In this context, the Single Judge also noted that the Respondent failed to provide
clarifications on the criteria adopted for the calculation of the relevant fines nor it has
properly substantiated its decision, which was merely notified to the player just 2 days after
the aforementioned events occurred.
42. With the above in mind, the Single Judge was of the opinion that the Respondent acted in
an abusive manner against the player which right to be heard was not fully granted.
43. Furthermore, the Single Judge emphasized that, although the fine stipulated under art. 5
u) of the contract could be de facto considered as a contractual penalty, hence the parties
are, in principle, free to determine its amount, this would not prevent anyway the Single
Judge from evaluating its proportionality and reducing (or annulling it) it if found excessive.
44. Indeed, the Single Judge was of the opinion that the wording of the mentioned article
appears generic and of such broad applicability which renders difficult its concrete
implementation, especially in cases where the offence appears of modest relevance, such
as in the case at stake.
45. In particular, the Single Judge noticed that the relevant double sanction issued by the
Respondent in that circumstances amounts to approx. USD 33,232, which corresponds to
nearly 3 player’s monthly salaries, which in the Single Judge’s view is largely
disproportionate.
46. With the above considerations in mind, the Single Judge decided to disregard the club’s
request and assessed that the player shall be entitled to receive his outstanding
remuneration in full.
47. Having stated the above, in accordance with the general legal principle of pacta sunt
servanda, the Single Judge decided that the Respondent is liable to pay to the Claimant the
amount which remained outstanding to date, i.e. USD 43,900.
pg. 9
REF. FPSD-7177
48. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Single Judge in this regard, the latter decided to award the Claimant interest at the
rate of 5% p.a. on the outstanding amounts as from the relevant due dates until the date
of effective payment.
ii. Compliance with monetary decisions
49. 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.
50. 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.
51. Therefore, bearing in mind the above, the Single Judge 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.
52. 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.
53. 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.
d. Costs
54. 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.
pg. 10
REF. FPSD-7177
55. 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.
56. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 11
REF. FPSD-7177
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Allyson Aires Dos Santos, is accepted.
2.
The Respondent, Bandirmaspor, must pay to the Claimant the following amount(s):
USD 11,250 net as outstanding remuneration plus 5% interest p.a. as from 21 May
2022 until the date of effective payment;
USD 11,250 net as outstanding remuneration plus 5% interest p.a. as from 21 June
2022 until the date of effective payment;
USD 700 net as outstanding amount plus 5% interest p.a. as from 21 April 2022 until
the date of effective payment;
USD 700 net as outstanding amount plus 5% interest p.a. as from 21 May 2022 until
the date of effective payment;
USD 20,000 net as outstanding bonus plus 5% interest p.a. as from 1 August 2022 until
the date of effective payment;
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 12
REF. FPSD-7177
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 | [email protected] | T: +41 (0)43 222 7777
pg. 13