DRC Overdue Payables
Texto da decisão
REF. FPSD-13487
Decision of the
Dispute Resolution Chamber
passed on 3 April 2024
regarding an employment-related dispute concerning the player Britt Curtis
Assombalonga
BY:
Andre dos Santos Megale, Brazil
CLAIMANT:
Britt Curtis Assombalonga, Great Britain
Represented by Erkan Yucel Ozturk
RESPONDENT:
Yukatel Adana Demirspor A.S., Türkiye
Represented by Umur Varat
pg. 2
REF. FPSD-13487
I. Facts of the case
1.
On 1 August 2021, the British player Britt Curtis Assombalonga (hereinafter: Player or
Claimant) and the Turkish club Yukatel Adana Demirspor A.S. (hereinafter: Club or
Respondent) entered into an employment contract valid as from the date of signature until
31 May 2024 (hereinafter: Employment Contract).
2.
On 27 January 2023, the Player and the Club signed a Mutual Termination Agreement by
means of which they (i) terminated the Employment Contract; and (ii) established the
financial consequences in connection thereto (hereinafter: Termination Agreement).
3.
Pursuant to the Termination Agreement, the Club undertook to pay the Player a total
amount of EUR 160,000 net, payable as follows:
•
•
•
4.
EUR 50,000 on 30 April 2023;
EUR 50,000 on 30 May 2023; and
EUR 60,000 on 30 June 2023.
Clause 3 of the Termination Agreement reads as follows:
“Above mentioned Termination Payment shall be made only if the Player shall sign a contract
to any Club except the Clubs located in Turkey. In case of Player shall sign a contract with a
Turkish Club, Club shall not make payments written above (EUR 160.000). In addition Player
accepts to pay 500.000 Euro to the Club as an early termination compensation”.
5.
In accordance with the information retrieved from the FIFA Transfer Matching System
(TMS) and confirmed by the Player, on 30 January 2023 he entered into a new contract with
the English club, Watford FC.
6.
On 10 January 2024, the Player put the Club in default and requested payment of EUR
110,000 within the following 10 days.
7.
On 25 January 2024, the Player lodged the claim at hand before FIFA for overdue payables.
In particular, the Player requested to be awarded EUR 110,000 net under the Termination
Agreement plus 5% interest p.a. as follows:
•
•
8.
On EUR 50,000 as from 1 June 2023; and
On EUR 60,000 as from 1 July 2023.
On 8 March 2024, the Club submitted its reply to the claim. In doing so, the Club
acknowledged its default towards the Player, however argued that it was prevented to
make the payment due to financial impact of the earthquake in Türkiye and especially the
city of Adana.
pg. 3
REF. FPSD-13487
9.
The Club pointed out to the fact that a state of emergency was declared on 8 February
2023, as well as the national currency had depreciated by more than 50%. Likewise, it
recalled its good reputation when it comes to financial obligations but stated that it did not
have the means to comply with a payment order.
10. Given the above, the Club requested that the claim be rejected. Alternatively, it claimed
that interest should arise as from the 20 January 2024, namely the date when the deadline
granted by the Player in his default notice expired.
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter: 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 25 January 2024 and submitted for
decision on 8 March 2024. Taking into account the wording of art. 34 of the March 2023
edition of the Procedural Rules Governing the Football Tribunal (hereinafter: Procedural
Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at
hand.
12. Furthermore, 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 the
Regulations on the Status and Transfer of Players (February 2024 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 British player and
a Turkish club.
13. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (February 2024 edition),
and considering that the present claim was lodged on 25 January 2024, the May 2023
edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as
to the substance.
b. Burden of proof
14. 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.
pg. 4
REF. FPSD-13487
c. Merits of the dispute
15. 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.
i. Main legal discussion and considerations
16. 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 a claim for outstanding remuneration
only, based on the Termination Agreement.
17. In particular, the Single Judge acknowledged that the sum now claimed by the Player (i.e.,
EUR 110,000) is contractually based and the debt was acknowledged by the Club, who
nonetheless referred to the earthquake in Türkiye and its economic impacts to justify its
default.
18. While considering the above and despite being mindful of the argumentation of Club, the
Single Judge found it decisive that the Club failed to submit any documentary evidence
regarding the impossibility to perform the payments and/or any attempt to avoid litigation
by reaching any amicable solution with the Player. Conversely, he highlighted that:
•
according to the information retrieved from the TMS, the Club has engaged in
multiple transactions in the last year (i.e., after February 2023), therefore
pursuing its footballing activities with seemingly normality; and
•
the Club did not advance any proof that it ever tried to settle the debt with the
Player and/or provided any explanation to this extent, especially when
considering that (i) it was put in default; and (ii) the second instalment of the
transfer fee has already been overdue for more than 5 months.
19. By way of conclusion, the Single Judge decided that the reasons invoked by the Club could
not succeed, hence the Player should be entitled to the outstanding remuneration sought
in line with the general legal principle of pacta sunt servanda.
20. In addition, 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 from its due dates until the date of
effective payment. For completeness, the Single Judge expressly rejected the alternative
request of the Club concerning the postponement of the interests based on all the same
pg. 5
REF. FPSD-13487
reasons outlined above and in particular the Club’s failure to substantiate its position visà-vis the timeline of the case.
ii. Art. 12bis of the Regulations
21. The Single Judge then 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 Single Judge 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 Single Judge 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 this is the second offense by the Club within the last two years, the Single Judge decided
to impose a reprimand on the Club in accordance with art. 12bis par. 4 lit. b) of the Regulations.
24. In this connection, the Single Judge 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
25. 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.
26. 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.
27. Therefore, bearing in mind the above, the Single Judge 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.
pg. 6
REF. FPSD-13487
28. 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.
29. 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
30. 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.
31. 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.
pg. 7
REF. FPSD-13487
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Britt Curtis Assombalonga, is accepted.
2.
The Respondent, Yukatel Adana Demirspor A.S., must pay to the Claimant the following
amount(s):
- EUR 50,000 net as outstanding remuneration plus 5% interest p.a. as from 1 June 2023
until the date of effective payment; and
- EUR 60,000 net as outstanding remuneration plus 5% interest p.a. as from 1 July 2023
until the date of effective payment.
3.
A reprimand is imposed on the Respondent.
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-13487
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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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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