DRC Overdue Payables
Texto da decisão
REF FPSD-6956
Decision of the
Dispute Resolution Chamber
passed on 26 January 2023
regarding an employment-related dispute concerning the player IBRAHIMA
BALDE
BY:
Jorge Gutiérrez (Costa Rica)
CLAIMANT:
Ibrahima Balde, Senegal
RESPONDENT:
Giresunspor, Türkiye
Represented by Atahan Sevimli
Page 2
REF FPSD-6956
I. Facts of the case
1.
On 8 September 2020, the Senegalese player Ibrahima Balde (hereinafter: the Claimant)
and the Turkish club Giresunspor (hereinafter: the Respondent) concluded an employment
contract (hereinafter: the contract) valid from the same date until 31 May 2022.
2.
In accordance with the contract, the Respondent undertook to pay to the Claimant inter
alia the following sums:
a. “The NET payment of EUR 220,000 for the 2020/2021 season;
b. The NET payment of EUR 330,000 for the 2021/2022 season, payable in 11
instalments of EUR 30,000, with the first payment being due on 31 August 2021
and the last payment due in June 2022.”
3.
By means of letter dated 15 July 2022, the Claimant put the Respondent in default of the
remaining two salaries related to the season 2021/2022, i.e., May and June 2022, for a
total of EUR 60,000 net. Contextually the Claimant granted a 10-days deadline to the
Respondent in order to remedy the breach.
4.
On 5 August 2022, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
5.
According to the Claimant, the Respondent failed to comply with its financial obligations
related to the salaries due in connection with the months of May 2022 and June 2022.
6.
In particular, the Claimant held that the Respondent ignored the letter of default dated
15 July 2022, hence the salaries abovementioned remained outstanding to date.
7.
Accordingly, the Claimant requested a total of EUR 60,000 as outstanding remuneration
plus 5% interest per annum as from the respective due dates.
8.
In its reply, the Respondent objected to the demands presented by the Claimant, arguing
having already realized several payments to the latter. In this context, the Respondent
produced several receipts of payments, which date up to 22 April 2022.
9.
The request for relief of the Respondent was to reject the claim in its entirety.
Page 3
REF FPSD-6956
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as 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 5 August 2022
and submitted for decision on 26 January 2022. 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.
2.
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 Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Senegalese
player and a Turkish club.
3.
Subsequently, the Single Judge 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 (October 2022 edition)
and considering that the present claim was lodged on 5 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
4.
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 Transfer Matching System (TMS).
c. Merits of the dispute
5.
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.
Page 4
REF FPSD-6956
i. Main legal discussion and considerations
6.
The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that while the claimant seeks unpaid wages for May and
June 2022, the Respondent argued having already made the due payments in favour of
the Claimant.
7.
In this context, the Single Judge observed that the Respondent submitted several
payment slips related to the Claimant’s previous salaries but failed to produce evidence
that the salaries connected with the month of May 2022 and June 2022 have been paid.
In other words, the evidence filed by the Respondent, while pertaining to several
payments made, had no connection with the amounts sought by the Claimant.
8.
In this context, the Single Judge acknowledged that his task was to determine, based on
the evidence presented by the parties, whether the claimed amounts had in fact
remained unpaid by the Respondent and, if so, whether the latter had a valid justification
for not having complied with its financial obligations.
9.
The Single Judge first noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded
between the parties. Nonetheless, absent such evidence and any reasonable justification
by the Respondent for not having complied with the terms of the contract, the Single
Judge decided that its position could not be upheld.
10. Accordingly, the Single Judge concluded that the amounts of EUR 30,000 due as salary for
May 2022 and EUR 30,000, due for the salary of June 2022, remain outstanding to date.
11. As a consequence, and 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 amounts which remained outstanding, i.e., EUR 60,000 (i.e. the salaries due for May
2022 and June 2022).
12. 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 respective due
dates until the date of effective payment.
ii. Sanctions under art. 12bis of the Regulations
13. In continuation, the Single Judge 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
Page 5
REF FPSD-6956
without a prima facie contractual basis may be sanctioned in accordance with art. 12bis
par. 4 of the Regulations.
14. 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 more than 30 days before, and granted the
club a 10-day deadline to cure such breach of contract.
15. Accordingly, the Single Judge confirmed that the club had delayed a due payment without
a prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
16. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations
he has competence to impose sanctions on the club. On account of the above and bearing
in mind that this is the sixth offense by the club within the last two years, the Single Judge
decided to impose a fine of USD 18,750 on the club in accordance with art. 12bis par. 4
lit. c) of the Regulations.
17. In this connection, the Chamber highlighted that further repeated offences will be
considered as an aggravating circumstance and lead to a more severe penalty in
accordance with art. 12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
18. 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.
19. 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.
20. 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.
Page 6
REF FPSD-6956
21. 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.
22. 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
23. 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.
24. 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.
25. Lastly, the Single Judge concluded the deliberations by rejecting any other requests for
relief made by any of the parties.
Page 7
REF FPSD-6956
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ibrahima Balde, is accepted.
2.
The Respondent, Giresunspor, has to pay to the Claimant, the following amount:
EUR 30,000 as outstanding remuneration plus 5% interest p.a. as from 1 June 2022
until the date of effective payment;
EUR 30,000 as outstanding remuneration plus 5% interest p.a. as from 1 July 2022
until the date of effective payment.
3.
The Respondent is further ordered to pay a fine in the amount of USD 18,750. The fine is
to be paid within 30 days of notification of the present decision to FIFA to the following
bank account with reference to case nr. FPSD-6956:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230 - IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
Please mention the applicable reference number
4.
Full payment of the amounts indicated under point 2. (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.
Page 8
REF FPSD-6956
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. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 9
REF FPSD-6956
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
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
Page 10