Labour Disputes
Texto da decisão
REF. FPSD-16285
Decision of the
Dispute Resolution Chamber
passed on 27 February 2025
regarding an employment-related dispute concerning the player Ryan Guno
Babel
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Andre DOS SANTOS MEGALE (Brazil), Member
Stefano SARTORI (Italy), Member
CLAIMANT:
Ryan Guno Babel, the Netherlands
Represented by Didem Sunna
RESPONDENT:
Ikas Eyüpspor, Türkiye
Represented by Ercan Sevdimbaş
pg. 2
REF. FPSD-16285
I. Facts of the case
1.
On 8 August 2022, the Dutch player Ryan Guno Babel (hereinafter: the Claimant) and the
Turkish club Ikas Eyüpspor (hereinafter: the Respondent) concluded an employment
contract (hereinafter: the Employment Contract) valid as from the aforementioned date until
31 May 2024.
2.
The Claimant and the Respondent are jointly referred as the parties.
3.
On 28 September 2023, the parties concluded a Termination and Settlement Agreement
(hereinafter: the Termination and Settlement Agreement).
4.
According to article 1.2 of the Termination and Settlement Agreement, the Respondent
undertook to pay the Claimant EUR 800,000 net as follows (quoted verbatim):
- 50.000.- EUR net on 5.10.2023.
- 50.000.- EUR net on 5.11.2023.
- EUR 700.000.- EUR in total, net of EUR 35.000.-EUR per months starting 30 November 2023
until 30 June 2025 (29 February 2024 and 28 February 2025).
5.
Article 1.2 of the Termination and Settlement Agreement also stipulates that:
“If the Club is 14 days in delay in making any of the 20 payments scheduled from 30 November
2023, the Player shall send a notice to the Club. Following such date, the Club shall have 7 days
to make the payment.
In case of non-payment by the Club within 7 days following the notice; all future installments
mentioned above shall be due and payable IMMEDIATELY and also the Club accepts to pay
100.000.-EUR to the Player as a penalty together with all installments which are outstanding for
the future. The said penalty of 100.000.- shall be paid as a one-time payment. Any costs arising
from this cancelation contract after nonpayment are for the club.”
6.
By email correspondence dated 18 September 2024, the Claimant put the Respondent in
default of payment of EUR 35,000 net, setting a time limit expiring on 25 September 2024
in order to remedy the default.
7.
On 2 October 2024, the Respondent made a payment of EUR 35,000.
II. Proceedings before FIFA
8.
On 27 September 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
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REF. FPSD-16285
a. Claim of the Claimant
9.
In his claim, the Claimant argued that according to article 1.2 of the Termination and
Settlement Agreement, the Respondent undertook to pay him EUR 800,000 net distributed
in two instalments of EUR 50,000 payable on 5 October and 5 November 2023 respectively,
as well as 20 consecutive instalments of EUR 35,000 payable by the end of each month
from 30 November 2023 until 30 June 2025.
10. The Claimant recalled that according to the fourth paragraph of article 1.2 of the
Termination and Settlement Agreement if the Club had a 14-day delay in any of the 20
payments scheduled from 30 November 2023, he would be entitled to put the Respondent
in default giving 7 days to remedy the default, otherwise all remaining payments would be
considered due and payable immediately alongside with a one-time penalty amounting to
EUR 100,000.
11. Consequently, the Claimant considered the following amounts to be overdue (quoted
verbatim):
• Net EUR 35.000.- of 30 August 2024,
• Net EUR 350,000.- of the remaining value of the Termination and Settlement Agreement
• Net EUR 100,000.- as agreed penalty.
12. The requests for relief of the Claimant, were the following (quoted verbatim):
“By reserving our legal right to claim the remaining installments and for the facts and legal
arguments that were developed above, the FIFA Dispute Resolution Chamber is respectfully
requested:
1. To accept the claims of Ryan Guno Babel
2. To condemn Eyupspor Kulubu to pay in favour of the Claimant the total unpaid and overdue
payment of Net EUR 485.000.- along with the interest rate of 5% p.a. starting from the below
due dates until the date of effective payments;
• Net EUR 35.000.- along with its interest of 5% p.a. starting from 30 August 2024 until the date
of effective payment,
• Net EUR 350.000.- along with its interest of 5% p.a. starting from 26 September 2024 until the
date of effective payment,
• Net EUR 100.000.- along with its interest of 5% p.a. starting from 26 September 2025 until the
date of effective payment,
3. To establish that the costs of the present arbitration procedure shall be borne by the
Respondent.”
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REF. FPSD-16285
b. Reply of the Respondent
13. In its reply, the Respondent held that it complied with 13 payments in full and on time, only
paying late one instalment of EUR 35,000. Hence, the Respondent considered the penalty
clause requested by the Claimant to be unlawful and excessive for the late payment of only
one instalment.
14. Moreover, the Respondent cited previous decisions from FIFA (FPSD-11231) and CAS
(2017/A/5046) aiming to support its argument that the penalty clause can be reduced in
case of significant disproportionality.
15. Lastly, the Respondent held that the penalty clause should be proportional to the amount
of the delayed instalment. Therefore, it considered the penalty clause to be exorbitant and
argued that it should be rejected.
16. Consequently, the Respondent requested (quoted verbatim):
“7.1 The reasons explained above we kindly request you to decide judgment of dismissal about
the present case.
7.2 For the reasons detailed above, we request that the exorbitant and unfair penalty clause set
in the contract be completely removed or reduced.
7.3 Consider the amounts paid and good faith of the Respondent while evaluating the Claimant
requests according to the reasons explained above and according to the bank receipts which
was provided by the Respondent and setoff the mentioned amount from the Claimant’s
requests.”
c. Rejoinder of the Claimant
17. In his rejoinder, the Claimant stated that the allegations made by the Respondent were
false and unfounded.
18. The Claimant asserted that the original date for the requested instalment was 30 August
2024, for which he sent a notification on 18 September 2024 giving a deadline until 25
September 2024 to fulfil the payment.
19. In this respect, the Claimant held that the Respondent did not make any payment or
provided any answer until 5 days after the claim was filed.
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REF. FPSD-16285
20. The Claimant reiterated that according to the Termination and Settlement Agreement, the
failure to pay one of the instalments on time would result in all the remaining instalments
becoming due alongside with the penalty clause of EUR 100,000.
21. Regarding FIFA’s decision FPSD-11231 cited by the Respondent in its response, the
Claimant stated that in the referred case, the penalty clause is foreseen for each instalment
separately, while in this claim the penalty clause was foreseen for an amount of EUR
800,000 net to be paid only once. In this respect, the Claimant argued that the penalty
clause corresponds to 12.5 % of the agreed amount.
22. In light of the above, the Claimant stated that the Respondent’s request for reduction or
removal of the penalty clause shall be dismissed.
23. Consequently, the Claimant amended his request to FIFA as follows (quoted verbatim):
“By reserving our legal right to claim the remaining installments and for the facts and legal
arguments that were developed above, the FIFA Dispute Resolution Chamber is respectfully
requested:
1. To accept the claims of Ryan Guno Babel
2. To condemn Eyupspor Kulubu to pay in favour of the Claimant the total unpaid and overdue
payment of Net EUR 450.000.- along with the interest rate of 5% p.a. starting from the below
due dates until the date of effective payment;
• Net EUR 350.000. as the remaining value of the Settlement Agreement along with its interest
of 5% p.a. starting from 26 September 2024 until the date of effective payment,
• Net EUR 100.000.- along with its interest of 5% p.a. starting from 26 September 2024 until
the date of effective payment,
3. To establish that the costs of the present arbitration procedure shall be borne by the
Respondent.”
d. Final comments of the Respondent
24. In its final comments, the Respondent mainly reiterated that the penalty clause is
exorbitant and disproportionate.
25. The Respondent insisted that it only missed one payment.
26. Therefore, the Respondent requested FIFA (quoted verbatim):
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REF. FPSD-16285
“8. The reasons explained above we kindly request you to decide judgment of dismissal about
the present case.
9.For the reasons detailed above, we request that the exorbitant and unfair penalty clause set
in the contract be completely removed or reduced.
10. Consider the amounts paid and good faith of the Respondent while evaluating the Claimant
requests according to the reasons explained above and according to the bank receipts which
was provided by the Respondent and setoff the mentioned amount from the Claimant’s
requests”.
pg. 7
REF. FPSD-16285
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. First of all, the Dispute Resolution Chamber (hereinafter: the 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 27 September 2024 and submitted for
decision on 27 February 2025. Taking into account the wording of art. 34 of the January
2025 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. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (hereinafter: the Regulations) (January
2025 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 Dutch player and a Turkish club.
29. 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 its art. 29,
the January 2025 edition of the Regulations is applicable to the matter at hand as to the
substance.
b. Burden of proof
30. 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 by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
c. Merits of the dispute
31. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
i. Main legal discussion and considerations
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REF. FPSD-16285
32. The Chamber then moved to the substance of the matter and took note of the fact that the
parties strongly dispute the consequences arising from the Respondent’s failure to comply
with one instalment of the Termination and Settlement Agreement.
33. In particular, the Chamber acknowledged that its task was to determine whether the
instalment claimed by the Claimant was paid on time, as well as the proportionality of the
acceleration and penalty clause.
I.
Did the Club timely pay the instalment due on 30 August 2024, and if not, did
the remaining amounts of the Termination and Settlement Agreement
become due?
34. Firstly, the Chamber noted that it is undisputed that the Respondent failed to comply with
the payment of the instalment due on 30 August 2024 amounting to EUR 35,000 net. In this
regard, the Chamber pointed out that, based on the evidence on file, this instalment was
only paid on 2 October 2024.
35. Furthermore, the DRC recalled the content of Article 1.2 of the Termination and Settlement
Agreement, which stipulates (quoted verbatim):
“If the Club is 14 days in delay in making any of the 20 payments scheduled from 30 November
2023, the Player shall send a notice to the Club. Following such date, the Club shall have 7 days
to make the payment. In case of non-payment by the Club within 7 days following the notice; all
future installments mentioned above shall be due and payable IMMEDIATELY and also the Club
accepts to pay 100.000.-EUR to the Player as a penalty together with all installments which are
outstanding for the future. The said penalty of 100.000.- shall be paid as a one-time payment.
Any costs arising from this cancelation contract after non-payment are for the club.”
36. In this respect, the Chamber noted that while on 18 September 2024 the Claimant put the
Respondent in default and requested the payment of EUR 35,000 net overdue since 30
August 2024, setting a time limit expiring on 25 September 2024 in order to remedy the
default, the Respondent did not react to the notice until 2 October 2024, when it also paid
the outstanding amount.
37. Taking into account the above, the Chamber confirmed that the Respondent failed to pay
the aforementioned instalment on time, hence, based on article 1.2 of the Termination and
Settlement Agreement, the remaining balance (i.e. EUR 350,000 net) was accelerated.
38. For the sake of completeness, the Chamber also recalled that in accordance with the
consistent jurisprudence of the Football Tribunal, the acceleration of subsequent
payments upon the non-payment of an amount previously due as principal is a practice
traditionally recognized and considered proportionate, insofar as it constitutes a security
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REF. FPSD-16285
in benefit of the creditor, since it encourages the debtor party to respect its financial
obligations towards the creditor party.
39. As a consequence, and by referring to the general legal principle of pacta sunt servanda, the
Chamber decided that the Respondent is liable to pay to the Claimant the accelerated
amount of EUR 350,000 net, plus 5% interest p.a. as from 27 September 2024 (i.e. the day
after the date when this clause was triggered) until the date of effective payment.
40. Is the penalty clause proportionate?
41. In continuation, the Chamber moved to analyse whether the penalty stipulated in the
Article 1.2 of the Termination and Settlement Agreement is also proportionate.
42. In this context, the Chamber noted that the Respondent considers the quantum of the
penalty clause to be unlawful, disproportionate and exorbitant for only one missing
payment. Moreover, the Respondent stated that the penalty is 60% higher than the amount
delayed, insisting that it should be set aside or at least reduced.
43. On the other hand, the Chamber noted that the Claimant argued that the Respondent’s
request shall be dismissed as the penalty should be assessed in the light of the total debt
(i.e. EUR 800,000 net) and not to the delayed amount (i.e. EUR 35,000 net). In this respect,
the Claimant highlighted that the penalty was equivalent to 12.5% of the debt.
44. At this point, the Chamber mentioned that, according to the jurisprudence of the Football
Tribunal, penalty clauses must pass a proportionality test on a case-by-case basis.
Furthermore, the DRC also recalled that a “disproportionate” penalty exceeds the limits of
what seems to be reasonable in light of the circumstances.
45. The Chamber also underscored that according to the jurisprudence of the Court of
Arbitration for Sport (CAS), with which the DRC agreed, “a penalty is considered abusive when
its amount is unreasonable and clearly exceeds the admissible amount in consideration of the
principles of justice and equity”, and “since the possibility of a reduction affects the contractual
freedom of parties, it may only be applied with reservation” (CAS 2021/A/7727 Yeni
Malatyaspor FK v. Issiar Dia).
46. The Chamber highlighted that the same Panel has also established that “[…] when analysing
the proportionality of a penalty clause, the creditor’s interest, the seriousness of the breach of
the contract, the debtor’s intentional failure, the financial situation of both
parties, the economic dependence of the debtor, the disproportion between the damage and
the penalty, the debtor’s professional background, and not only the damage actually produced
but also the risk of damage to which the creditor has exposed, are to be considered relevant”.
47. In casu, the Chamber noted that the parties agreed on a total penalty of EUR 100,000 in
case of non-compliance with the payment of any of the 20 instalments scheduled as from
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REF. FPSD-16285
30 November 2023, which totalled EUR 800,000 net. Moreover, the Chamber recalled its
conclusion that the remaining debt under the Termination and Settlement Agreement had
been accelerated, thereby leading to an outstanding amount of EUR 350,000 net.
48. The Chamber then decided that the penalty stipulated in article 1.2 of the Termination and
Settlement Agreement was not disproportionate, having due regard to the circumstances
of the case, the structure and wording of the Termination and Settlement Agreement, and
contextually what the Chamber assumed to be the intention of the parties at the initial
stage of their stipulations. The Chamber was particularly reassured by the fact that (i) the
penalty amounted to far less than 50% of the original obligation and the outstanding
(accelerated) amount; (ii) the Respondent had delayed the payment for a significant period
of time; and (iii) the Claimant had provided the Respondent with a reasonable deadline to
remedy the breach, to no avail.
49. As a result, the Chamber saw no reason to depart from the parties’ contractual
arrangement and therefore decided to award the penalty of EUR 100,000. However, since
the penalty clause did not refer to a payment net of tax, the Chamber decided that no such
reference should be included in the award.
50. Finally, the DRC also noted that, in accordance with the principle of ne bis in idem, no
interest applies on the contractual penalty.
ii. Compliance with monetary decisions
51. 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.
52. 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.
53. 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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REF. FPSD-16285
54. 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.
55. 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
56. 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.
57. 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.
58. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 12
REF. FPSD-16285
IV. Decision of the Dispute Resolution Chamber
2.
The claim of the Claimant, Ryan Guno Babel, is partially accepted.
3.
The Respondent, Ikas Eyüpspor, must pay to the Claimant the following amount(s):
-
EUR 350,000 net as outstanding remuneration plus 5% interest p.a. as from 27
September 2024 until the date of effective payment;
-
EUR 100,000 as contractual penalty.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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.
7.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-16285
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 – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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