Labour Disputes
Texto da decisão
REF FPSD-7483
Decision of the
Dispute Resolution Chamber
passed on 8 March 2023
regarding an employment-related dispute concerning the player Yacine
Bammou
BY:
DE WEGER Frans (the Netherlands), Chairperson
DOS SANTOS MEGALE Andre (Brazil), member
TIMERA Khadija (Senegal), member
CLAIMANT:
Umraniyespor, Türkiye
Represented by Ercan Sevdimbas
FIRST RESPONDENT:
Yacine Bammou, France
Represented by Selçuk Demir
SECOND RESPONDENT:
Al Shamal SC, Qatar
Represented by MCA Sports Law LLP
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I.
Facts of the case
1.
On 5 July 2021, the Turkish club, Umraniyespor (hereinafter: the club or the Claimant) and the
French player, Yacine Bammou (hereinafter: the player or the First Respondent) concluded an
employment contract (hereinafter: the contract) valid for two seasons, namely 2021/2022 and
2022/2023.
2.
In accordance with the information available in the Transfer Matching System (TMS), the
season 2021/2022 in Türkiye started on 1 July 2021 and ended on 30 June 2022.
3.
According to the contract, the Claimant undertook to pay the Respondent inter alia the
following amounts for the season 2021/2022:
a. EUR 40,000 as advance payment upon registration of the contract;
b. EUR 19,500 as monthly salary between August 2021 and May 2022, payable on
the last day of every month;
c. EUR 30,000 pro rata as promotion bonus in case the Claimant was promoted to
the upper division of Türkiye. The Claimant admits that the player played 28 out
of 36 games in the 2021/2022 season and therefore would be entitled to EUR
23,333 as promotion bonus;
d. EUR 10,000 until the end of the season under initiative of the club.
4.
On 15 September 2021, the club was notified by the Alanya Enforcement Office of a debt of
TRY 307,535.09 (approx. EUR 25,000) against the player, with the creditor being Mr Emrah
Buyukgenc (hereinafter: the Creditor). The notification reads as follows:
“It has been decided to confiscate ¼ of the debtor’s wages, premiums, benefits and bonuses as
well as the debt amount of all guarantees, for the collection of the above mentioned until the
debt is discharged receivables.
Pursuant to the decision, following the notification of this letter, you are warned:
1. to notify our directorate within seven days of confirmation of whether the gross and net salary
amount received by the debtor has been applied,
2. to ensure that the withholdings from the debtor’s salary are sent within seven days at the
latest without delay,
3. to be put in order if there are other liens placed on the debtor’s salary, and to notify these
within seven days at the latest, while the file numbers and amount of the debt and when it will
expire,
4. to notify the debtor’s relocation, resignation retirement, and changes that may occur in his
salary within seven days at the latest,
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5. to ensure that the necessary actions are taken to inform the abovementioned directorate's file
as a result of the execution of all transactions as stated above; otherwise your institution and/or
the relevant and responsible persons may be subject to civil and criminal responsibilities (…)”
5.
On 6 December 2021, the club paid TRY 74,159.50 to the Alanya Enforcement Office.
6.
On 16 December 2021, the player put the club in default and requested payment of EUR
39,000 within 15 days.
7.
On 24 December 2021, the club paid TRY 63,176 to the Alanya Enforcement Office.
8.
On 1 February 2022, the player put the club in default and requested payment of EUR 39,000
within 15 days, corresponding to his salaries of December 2021 and January 2022.
9.
On 11 February 2022, the club paid TRY 74,831.25 to the Alanya Enforcement Office.
10. On 12 April 2022, the club paid TRY 77,180.89 to the Alanya Enforcement Office.
11. On 20 May 2022, the parties signed a “settlement protocol” (hereinafter: the settlement
protocol), which reads as follows (quoted verbatim):
“The [First Respondent] accepts, declares and undertakes that due to his contractual
relationship with the [Claimant], please receivables from 2021/2022 football season arisen from
the contract till the signature of this settlement protocol has been fully paid by the [Claimant].
Within the scope of this Settlement Protocol, the parties accept, declare and undertake that there
are no rights and receivables between the parties regarding the 2021/2022 football season that
have arisen from the contract till the signature of this protocol. The [First Respondent] accept,
declare and undertake that he will not make any claim under any name for the receivables arisen
from the contract till the signature of this protocol.”
12. On 27 May 2022, the club paid TRY 82,875 to the Alanya Enforcement Office.
13. On 11 July 2022, the parties signed an “additional protocol” (hereinafter: the additional
protocol), which reads as follows:
“1. The Parties accept, declare and undertake that in case the [Claimant] receives in the amount
of net [EUR 715,000] + 5% solidarity contribution to the FIFA RSTP which will be paid by the [First
Respondent] or another club, the [Claimant] undertakes to release the [ after the collection of
the mentioned amount in full. The above mentioned amount will be deposited into the Club’s
bank account in full so that the Player can use this right of the release clause.
The player accepts, declares and undertakes that the said release amount is not exorbitant, is
reasonable, and has no objections in this regard. Also the Parties accept and undertake that this
release clause can be used until 15th July 2022.
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2. The Parties accept and undertake that once the Club will collect the money in full, the Club
undertakes to fulfil its obligations to release the Player.”
14. On the same date, the player missed a training session, apparently having left Türkiye.
15. On 16 July 2022, the player wrote to the club and stated that he was absent with authorization
from the club to have “discussions with other clubs”, and that due to serious health issues the
player could not join the training sessions. Together with the letter, a medical certificate of 11
July 2022 was presented.
16. On 18 July 2022, the player sent a termination notice to the club. In such letter, the player
made reference to his notices of 16 December 2021 and 01 February 2022 and argued that in
spite of them the player had not been paid EUR 105,000. According to the letter, this amount
corresponds to “salary payments for the year 2021-2022, Superlig promotion match bonus and
victory premiums”.
17. On or around 21 July 2022, the player and the Qatari club, Al Shamal SC (hereinafter: the
Second Respondent) signed an employment contract valid from 21 July 2022 until 31 May 2023.
Under such contract, the player was entitled to QAR 2,117,000 in total.
18. On 25 July 2022, the Second Respondent entered a transfer instruction in TMS to engage the
player.
19. On 27 July 2022, the Turkish Football Federation (TFF) rejected the issuance of the player’s
International Transfer Certificate (ITC), which was subsequently disputed by the Qatar Football
Association (QFA) on 31 May 2022.
20. On 2 August 2022, the Players’ Status Chamber (PSC) granted the provisional registration of
the player with the Second Respondent.
21. On 19 August 2022, the club paid TRY 89,212.50 to the Alanya Enforcement Office. As such,
the total amount paid to the enforcement office is TRY 461,435, approx. EUR 25,231 as
converted on said date.
II. Proceedings before FIFA
22. On 15 September 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
23. According to the Claimant, the player terminated the contract without just cause, specifically
to avoid the payment of the fee agreed under the additional protocol and in bad faith. More in
particular, the club outlined that it had paid EUR 262,698 plus TRY 613,434.24 to the player up
until the moment of termination, which covered the entire 2021/2022 season. On this note,
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the club presented 3 cheques for TRY 375,000 each, due respectively on 30 August 2022, 30
September 2022, and 30 October 2022.
24. The club indicated that in any event the settlement protocol denotes that no amounts were
due to the player for the season 2021/2022.
25. As such, the club requested that both respondents are found severally and jointly liable to pay
compensation, calculated as follows: EUR 715,000 per the additional protocol, plus 5%
solidarity over this amount, i.e., EUR 35,750.
b. Position of the Respondents
26. On 3 October 2022, the FIFA general secretariat invited both respondents to file their
respective positions by 23 October 2022, which was subsequently extended to 2 November
2022 at the request of each respondent.
27. On 1 November 2022, the First Respondent filed a statement of defense together with a
counterclaim for outstanding salaries only against the Claimant, however without all the
mandatory requirements set forth under art. 18 par. 1 of the Procedural Rules Governing the
Football Tribunal (hereinafter: Procedural Rules), namely the bank account registration form.
28. On the same date, the Second Respondent filed its reply.
29. On 3 November 2022, the FIFA general secretariat wrote to the First Respondent and
requested him to complete his petition by 8 November 2022, failing which his counterclaim
would be deemed withdrawn cf. art. 18 par. 2 and art. 21 of the Procedural Rules, and the
submission-phase of the proceeding closed.
30. Absent any reply from the First Respondent, on 9 November 2022, and in chronological order:
a.
the FIFA general secretariat wrote to the parties and confirmed both that the player’s
counterclaim was deemed withdrawn and that the submission phase of the proceeding
was closed in line with the cited articles as well as art. 23 of the Procedural Rules, i.e.,
confirming that no further submissions or evidence from the parties would be admitted
to the file;
b.
the First Respondent wrote to the FIFA general secretariat and stated that the bank
account registration form would be provided soon;
c.
the FIFA general secretariat wrote to the First Respondent and reiterated that the
submission-phase of the proceeding was closed;
d.
In response, the First Respondent sent a copy of the bank account registration form filled
out and signed by the player;
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e.
the FIFA general secretariat reverted once again to the First Respondent and informed
that its latest correspondence was inadmissible on the grounds of art. 23 of the
Procedural Rules.
I. Position of the First Respondent
31. The statement of defense of the First Respondent can be summarized as follows.
32. The player argued that the club repeatedly failed to honour its obligations and owed him EUR
105,000 by the date of termination of the contract, corresponding to the amounts described
below, and therefore he had just cause to terminate the contract.
a. EUR 16,500 for balance of February salary,
b. EUR 58,500 for the salaries of March, April, and May 2022;
c. EUR 30,000 as promotion bonus.
33. The player proceeded to challenge the various receipts filed by the Claimant and indicated
that at least EUR 67,244 have been admitted being owed by the club. He however reiterated
the entitlement to EUR 105,000.
34. As to the additional protocol, the player argued that he was subject to moral harassment and
to an unbearable psychological situation upon which the document was executed, which led
the club to take advantage of the player by adding a fee of EUR 715,000. The player
furthermore argued that the agreement in question was concluded “in order to end the
stressful and unstable situation upon which the player found himself”, arriving at a “definitive
solution with the Claimant”. However, the player filed no evidence in this respect.
35. Lastly, the player argued as to his absence as follows, while presenting a copy of his medical
certificate:
“The club blames the player, ex post facto and only to support its case, for having gone to France
and not having returned to Turkey within the time limit.
However, the player's absence was fully authorised by the club, which never intended to prohibit
the player from taking a few days' rest, even though he was injured.
While he was in France, the player consulted a doctor who forbade him, for medical reasons, to
leave the country.
In these circumstances, the club's arguments should be rejected “
36. The player requested the claim to be rejected.
II. Position of the Second Respondent
37. On 1 November 2022, the Second Respondent filed its reply.
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38. The Second Respondent objected to the claim of the Claimant. In doing so, it argued that the
player, for multiple reasons, had just cause to terminate the contract, and that in any event
the Claimant did not suffer any damage.
39. The Second Respondent outlined that in accordance with the Claimant’s own submissions, the
player received up until 18 July 2022 only EUR 179,885, broken down as follows:
-
“EUR 112,933.00/- paid in several instalments until 28 December 2021 (point 3.1 of the
Claim);
-
EUR 39,400.00/0 paid in several instalments until 16 February 2022 (point 3.2 of the Claim);
and
-
EUR 42,552.00/- paid in several instalments between 14 March 2022 and 1 May 2022 (point 3.3
of the Claim).”
40. Accordingly, the Second Respondent is of the opinion that EUR 95,115 were outstanding,
which is equivalent to almost 5 salaries. Equally, the Second Respondent requests that any
amounts related to the Creditor be dismissed as it is of the view that “the documentation
provided from the side of the Claimant is inconclusive and does not confirm actual payment”.
41. The Second Respondent also highlighted that the Claimant was repeatedly late in payment of
its obligations towards the player, even ignoring the player’s notices for outstanding
remuneration.
42. As to the settlement protocol, the Second Respondent stated that the player had been forced
to sign it, as he had been put in a position of financial dependency of the Claimant, leading
the latter to take advantage of him – despite the fact that multiple salaries were in facto owed.
The Second Respondent underlined that the player had been a “victim of a heavily moral
(discrimination, exercising pressure, mobbing) and financial abuse by the Claimant, which led to
serious health problems”. The Second Respondent relied on the player’s notice of July in
support of the foregoing. On this basis, the Second Respondent contends that under art. 14
par. 2 of the FIFA Regulations on the Status and Transfer of Players (RSTP), the Claimant forced
the player to sign the settlement protocol and thus this amounts to abusive behaviour.
43. As to the additional protocol, the Second Respondent underlined that the release clause
included therein, “which was not utilized until 15 July 2022, certainly no longer unfolded effect as
of 15 July 2022”.
44. On the basis of the above, the Second Respondent argued that the player had just cause to
terminate the contract. In particular, the Second Respondent submitted that the Claimant’s
violations of the contract were continuous and severe, and highlighted that the requisites of
art. 14bis of the RSTP were met in the case at hand.
45. Alternatively, the Second Respondent argued that the Claimant suffered no damages from
the termination, since:
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a. The player has hired free of payment by the Claimant; and
b. The Claimant did not have to pay the residual value of the contract due to its
early termination and thus did not incur in any losses.
46. The Second Respondent also argued that no sporting sanctions nor the joint liability should
apply since it did not induce the player to terminate the contract, since it exercised due
diligence in hiring the player and finding it jointly liable would contravene Swiss Law. On this
note, the Second Respondent highlighted that it did not have any contact with the player
before the contract had been terminated and was only made aware of the player’s status once
it was summoned to the proceedings.
47. The Second Respondent filed the following relief:
“1. To fully reject the Claimant’s Claim.
2. For the effect of the above, to state that the Claimant shall be condemned to pay any and all
costs of the present proceedings, if any.
IN THE ALTERNATIVE
1. To partially accept the Claimant’s Claim insofar only as to award the Claimant with a
compensation of symbolic nature.
2. To find that the Second Respondent is not jointly liable to pay any compensation (of symbolic
nature) to be paid by the Player.
3. To otherwise reject the Claimant’s Claim.
4. Therefore, to find that no sporting sanctions shall be imposed on the Player as well as the
Second Respondent.
5. For the effect of the above, to state that the Claimant shall be condemned to pay any and all
costs of the present proceedings, if any.”
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
48. First of all, the Dispute Resolution Chamber (hereinafter also referred to as 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 15 September 2022 and submitted for
decision on 8 March 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.
49. Subsequently, the members of 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 RSTP (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 Turkish club and a French player, with the involvement of a Qatari club.
50. 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 art. 26 par. 1
and 2 of the RSTP (October 2022 edition), and considering that the present claim was lodged
on 15 September 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
51. 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 TMS.
c. Merits of the dispute
52. Its competence and the applicable regulations having been established, 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 the assessment of
the matter at hand.
I.
Main legal discussion and considerations
53. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the matter at hand constitutes of a claim of a club against a
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player and his new club for breach of contract. A counterclaim for outstanding remuneration
only had been filed by the First Respondent, but it was later withdrawn as the latter failed to
adequately complete it.
54. In this context, the Chamber acknowledged that according to the Claimant, the player
terminated the contract without just cause. The First Respondent and the Second
Respondent, on the other hand, argue that just cause existed as the player was harassed,
because the club repeatedly failed to honour its obligations, and because outstanding
amounts existed – despite the fact that they do not concur on the amount deemed due.
55. As such, the DRC considered that its task was to make a determination on the following issues,
which were subsequently examined in turn:
a. Were the settlement protocol and the additional protocol valid considering the
allegations of duress?
b. If yes, what amounts were due to the player?
c. Did the player have just cause to terminate the contract?
d. What are the consequences that follow?
Were the settlement protocol and the additional protocol valid considering the allegations of
duress?
56. Both respondents argued that the player was forced to sign the settlement protocol and the
additional protocol. However, the DRC outlined that there is no evidence on file capable of
corroborating this argument insofar as the only evidence that has been produced is a medical
certificate signed by a doctor in France, which cannot denote the situation of harassment
alleged in the responses.
57. In this respect, the DRC confirmed that in line with article 13 par. 5 of the Procedural Rules,
the burden of proof lied with the respondents to demonstrate the matter of duress. However,
the Chamber finds that this has not been met and therefore the position of the respondents
can only be rejected.
58. Given the above, the DRC confirmed that the settlement protocol and the additional protocol
were valid and binding on the parties.
59. As to the additional protocol, the DRC remarked that its wording is clear to the extent that the
release fee could be triggered until 15 July 2022, as correctly argued by the Second
Respondent. As it was not, no further consequences arise out of this document, and therefore
its relevance to the outcome of the case is limited, if any.
If yes, what amounts were due to the player?
60. Having so found, the Chamber proceeded to examine the matter of the outstanding
remuneration due to the player. In doing so, the DRC underlined that the parties dispute the
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payments made by the club to the player and have gone at great length in analysing the proofs
of payment filed by the club.
61. The DRC observed nonetheless that the settlement protocol is rather clear in its wording to
demonstrate that all payments regarding season 2021/2022 had been made. The DRC equally
noted that the document in question is not a waiver. Therefore, any amounts due to the player
up until 20 May 2022 cannot be considered for the purposes of any outstanding remuneration
insofar as the player confirmed their receipt; yet there were some amounts still payable, since
the player could not have acknowledged at that stage payments not yet due. This is not only
evidenced from the timeline of the case but also as the document itself, which unequivocally
states “till the signature of this Protocol”.
62. As such, any payments including those related to the Creditor cannot be considered as
outstanding or compensated for that matter. However, three amounts were due after 20 May
2022, and these therefore should have been paid in line with the principle pacta sunt servanda:
a. Salary of May 2022 for EUR 19,500;
b. End of season payment of EUR 10,000; and
c. Promotion bonus (pro rata) which the club admits amounts to EUR 23,333.
63. On this basis, the Chamber confirmed that EUR 52,833 remained unpaid by the club to the
player.
Did the player have just cause to terminate the contract? What are the consequences that
follow?
64. In continuation the DRC turned to the matter of the termination and recalled its wellestablished jurisprudence according to which only a breach or misconduct that is of a certain
severity justifies the termination of a contract. In other words, only when there are objective
criteria which do not reasonably permit the expectation that the continuation of the
employment relationship between the parties can continue, a contract may be terminated
prematurely. Hence, if there are more lenient measures which can be taken in order for an
employer to ensure the employee’s fulfilment of his contractual duties, such measures must
be taken before terminating an employment contract. A premature termination of an
employment contract can only ever be an ultima ratio measure.
65. While there is no contemporaneous default notice regarding the cited outstanding amounts,
the DRC confirmed that they are indeed substantial. This fact, together with the overall
situation proven in the file that the club was repeatedly late in its payments led the DRC to
confirm that the club’s behaviour generated the legitimate expectation on the player’s side
that it would not honour its debt. Additionally, the DRC pointed out that some of the amounts
he was entitled to were listed in his termination notice.
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66. Considering the above, the DRC was of the view that such persistent failure on the Claimant’s
side to comply timely with its obligations constitutes just cause for the player to terminate the
contract under art. 14 of the Regulations. Accordingly, the claim of the Claimant is rejected.
67. The DRC lastly indicated that because the counterclaim of the player was withdrawn, no
further issues remain to be decided.
d. Costs
68. 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.
69. 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.
70. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Umraniyespor, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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
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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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