Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed by way of circulars on 23 February 2020,
in the following composition:
Om ar Ongaro (Italy ), Deputy Chairman
Johan v an Gaalen (S outh Africa), member
Jos é Luis Andrade (Portugal), member
on the claim presented by the player,
Ry an Guno Babel, the Netherlands,
represented by Mr Bora Imadoglu
as Claimant
against the club,
Bes iktas Futbol AS , Turkey,
represented by Mr Koray Akalp
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 4 January 2017, the Dutch player Ryan Guno Babel (hereinafter: the Claimant
or the player) and the Turkish club, Besiktas Futbol AS (hereinafter: the
Respondent or the club) concluded an employment contract (hereinafter:
contract), valid as from 4 January 2017 until 31 May 2017.
2.
On 16 January 2019, the parties signed a termination agreement (hereinafter: the
agreement). In accordance with the agreement, the Respondent was obliged to
make the following payments to the player:
- EUR 174,200 on 15 March 2019;
- EUR 200,000 on 30 April 2019;
- EUR 200,000 on 15 June 2019;
- EUR 350,000 “within 2 days following the receipt of the transfer fee from
Fulham FC”.
3.
Art. 5 of the agreement reads as follows: “In case of the Club fails to pay any of
the instalments under clause 2 [cf. point 2. above] in 2 days following their
respective due dates, the remaining amounts will immediately become due and
payable to the Club without any warning and notification requirement and the
Club also agrees to pay the Player a penalty of 5% of the whole overdue amount
for each month of payment until the date of effective payment”.
4.
Art. 7 of the agreement reads as follows: “In case of non-payment of any
receivables mentioned under article 2 and 3 [cf. point 2. above] within 10 business
days allowing their respective due dates, the Club agrees to pay to the Player an
extra penalty of 95.000 EUR added to articles 5 and 6”.
5.
On 21 June 2019, the player lodged a claim in front of FIFA against the club
requesting payment of EUR 400,000, corresponding to the second and third
instalment of the agreement, and a penalty fee of EUR 95,000 in accordance with
art. 7 of the agreement as well as a penalty fee of EUR 20,000 per month.
6.
On 12 July 2019, the club remitted a payment in the amount of EUR 400,000 to the
player.
7.
In his replica, the Claimant insisted on the payment of the agreed penalty fee
including the interest. According to the player, those penalty clauses were agreed
by both parties.
8.
While the club acknowledged that it’s a “common practice in international
football” to include penalty clauses in contract, it deemed that this penalty clause
is disproportionate and therefore not valid and should be reduced. In this regard,
the club referred to the DRC jurisprudence of limiting the interest rate at 18% p.a.,
as well arguing that penalties cannot be “requested together with default interest
as both requests aim at compensating the creditor for late payment”.
9.
Consequently, the club argued that the “multiple penalty clauses” are “excessive
and out of proportion” and go “beyond the aim of curing the damages of the
Claimant but simply punishes the Respondent”. Therefore the club requested to
reject the player’s claim or alternatively, to reduce the amount of the penalty.
Player Ryan Guno Babel, the Netherlands / Club Besiktas Futbol AS, Turkey
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II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) analyzed whether it was competent to deal with the case at hand. In
this respect, it took note that the present matter was submitted to FIFA on 21 June
2019. Consequently, the 2018 edition of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the
Procedural Rules).
2.
Subsequently, the DRC noted that, in accordance with art. 24 par. 1 and 2. in
combination with art. 22 lit. b) of the aforementioned Regulations on the Status
and Transfer of Players (edition January 2020), the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Dutch player and a
Turkish club.
3.
Furthermore, 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
January 2020), and considering that the present claim was lodged on 21 June 2019,
the June 2019 edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation submitted by the parties. 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.
5.
First, the DRC noted that the parties entered into an employment contract valid as
from 4 January 2017 until 31 May 2019, which the parties terminated on 16
January 2019 by signing a termination agreement, according to which the
Respondent committed to pay the Claimant the following amounts
- EUR 174,200 on 15 March 2019;
- EUR 200,000 on 30 April 2019;
- EUR 200,000 on 15 June 2019;
- EUR 350,000 “within 2 days following the receipt of the transfer fee from Fulham
FC”.
Player Ryan Guno Babel, the Netherlands / Club Besiktas Futbol AS, Turkey
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6.
In this context, the members of the Chamber took note of the content of art. 5 of
the termination agreement, according to which “In case of the Club fails to pay
any of the instalments under clause 2 in 2 days following their respective due
dates, the remaining amounts will immediately become due and payable to the
Club without any warning and notification requirement and the Club also agrees
to pay the Player a penalty of 5% of the whole overdue amount for each month
of payment until the date of effective payment”.
7.
Furthermore, the DRC noted the content of art. 7 of the agreement: “In case of
non-payment of any receivables mentioned under article 2 and 3 [cf. point 2.
above] within 10 business days allowing their respective due dates, the Club agrees
to pay to the Player an extra penalty of 95.000 EUR added to articles 5 and 6”.
8.
Furthermore, the DRC duly noted that the Respondent performed the payment of
the second and third instalment in the amount of EUR 400,000 on 12 July 2019
only, namely after that the Claimant lodged his claim before FIFA.
9.
With the above in mind, the DRC judge proceeded to examine the positions of the
parties and took note that the Claimant, inter alia, considered that the “penalty”
of 5% interest per month, in accordance with art. 5 of the termination agreement
as well as the penalty stipulated in art. 7 of the termination agreement were due.
10.
Moreover, the members of the Chamber noted that the Respondent held that
“multiple penalty clauses” are “excessive and out of proportion”. Therefore the
club requested to reject the player’s claim or alternatively, reduce the amount of
the penalty.
11.
On account of the above and, in particular, the diverging positions of the parties,
the DRC considered that the central issue of present dispute consists in assessing
whether the interest rate as well as the penalty stipulated in the termination
agreement is applicable and, in case, to what extent.
12.
In this respect, the members of the Chamber, before going into the merit of the
aforementioned issue, wished to recall that the Respondent indeed fulfilled its
obligation, even though with delay, to provide the Claimant with the payment of
the second and third instalment of the termination agreement and, thus, in
accordance with the general legal principle of pacta sunt servanda. In accordance
with art. 5 of the termination agreement, the amount of EUR 400,000 fell due on
3 May 2019, after the Respondent failed to remit the second instalment.
13.
Subsequently, the Chamber focussed its attention on the penalty clause contained
in art. 7 of the agreement, in light of the Respondent having paid the second and
third instalment of EUR 200,000 each, after the relevant deadline for payment had
fallen due and the Claimant’s pertinent request.
Player Ryan Guno Babel, the Netherlands / Club Besiktas Futbol AS, Turkey
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14.
In this context, the DRC acknowledged the arguments of both parties in respect of
the penalty clause and referred to its constant jurisprudence, in accordance with
which penalty clauses may be freely entered into by the parties and may be
considered acceptable, in the event that the pertinent written clause meets certain
criteria, such as proportionality and reasonableness. In this respect, the DRC
further highlighted that, in order to determine as to whether a penalty clause is
to be considered acceptable, the specific circumstances of the relevant case
brought before it shall also be taken into consideration.
15.
In the specific case at hand, the members of the DRC took into account the business
experience of the Respondent and the interest of the Claimant by timely receiving
the outstanding amounts. The DRC concluded that, with regard to these criteria,
the Respondent did not present any evidence that could lead to the conclusion
that the Respondent had valid reasons for the late payment of the agreed amount.
16.
In the specific case at hand, the members of the Chamber deemed that the penalty
fee of EUR 95,000, which the parties contractually agreed upon in the context of
terminating the employment relation, is both proportionate and reasonable in the
case at hand, since it represents 10.27% of the total payment due according to the
termination agreement.
17.
In continuation, the Chamber turned its attention to the argument of the
Respondent, according to which the penalty fee shall not be applied, since art. 5
of the termination agreement constitutes 5% interest per month, which in itself
constitutes a penalty.
18.
In this regard, the Chamber outlined that such interest clause was explicitly and
contractually agreed upon between the parties apart from the penalty fee and is
therefore not per se inapplicable.
19.
In addition, the members of the Chamber found that this specific interest clause
of 5% per month, corresponding to a yearly interest rate of 60%.
20.
In line with the Chamber’s jurisprudence, as well as CAS jurisprudence and in
accordance with Swiss Law, the DRC had no other option but to conclude that the
interest of 5% per month was disproportionate, and decided to reduce it to a rate
of 18% p.a., a rate that shall be applicable as from 3 May 2019, i.e. the date upon
which the amount of EUR 400,000 fell due, until 12 July 2019, i.e. the date of
effective payment.
Player Ryan Guno Babel, the Netherlands / Club Besiktas Futbol AS, Turkey
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21.
On account of all of the above, the Chamber decided that the contractual penalty
fee is valid and applicable in the present matter and that the Respondent is liable
to pay to the Claimant the amount of EUR 95,000 in accordance with art. 7 of the
termination agreement. With regard to the Claimant’s request for interest of 5%
per year on the penalty fee, the members of the DRC referred to the jurisprudence
of the DRC in similar cases and concluded that the Claimant’s request for default
interest on the penalty fee must be rejected.
22.
Finally, the members of the Chamber established that any further claim lodged by
the Claimant is rejected.
23.
Furthermore, taking into account the consideration under number II./3. above, the
DRC referred to par. 1 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.
24.
In this regard, the Chamber pointed out 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 and for the maximum duration of three entire and consecutive
registration periods.
25.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from
the moment in which the Claimant, following the notification of the present
decision, communicates the relevant bank details to the Respondent, a ban from
registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become
effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the
Regulations.
26.
Finally, the Chamber 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. 3 of the Regulations.
Player Ryan Guno Babel, the Netherlands / Club Besiktas Futbol AS, Turkey
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III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Ryan Guno Babel, is partially accepted.
2.
The Respondent, Besiktas Futbol AS, has to pay to the Claimant the amount EUR
95,000.
3.
The Respondent has to pay to the Claimant interest of 18% p.a. on the amount
of EUR 400,000 as from 3 May 2019 until 12 July 2019.
4.
Any further claim lodged by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the email address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amounts plus interest mentioned under points 2. and 3. above.
6.
The Respondent shall provide evidence of payment of the due amounts in
accordance with points 2. and 3. above to FIFA to the e-mail address
[email protected], duly translated into one of the official FIFA languages (English,
French, German, Spanish).
7.
In the event that the amounts due in accordance with points 2. and 3. above are
not paid by the Respondent w ithin 45 day s as from the notification by the
Claimant of the relevant bank details to the Respondent, the Respondent shall
be banned from registering any new players, either nationally or
internationally, up until the due amounts are paid and for the maximum
duration of three entire and consecutive registration periods (cf. art. 24bis of
the Regulations on the Status and Transfer of Players).
8.
The ban mentioned in point 7. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
Player Ryan Guno Babel, the Netherlands / Club Besiktas Futbol AS, Turkey
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9.
In the event that the amounts due in accordance with points 2. and 3. above are
still not paid by the end of the ban of three entire and consecutive registration
periods, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or
the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber).
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). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS. Within
another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Ryan Guno Babel, the Netherlands / Club Besiktas Futbol AS, Turkey
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