Labour Disputes
Texto da decisão
REF. FPSD-13685
Decision of the
Dispute Resolution Chamber
passed on 18 April 2024
regarding an employment-related dispute concerning the player Younes
Belhanda
COMPOSITION:
Martín AULETTA (Argentina), Deputy Chairperson
Khalid AWAD ALTHEBITY (Saudi Arabia), Member
Roy VERMEER (The Netherlands), Member
CLAIMANT:
Younes Belhanda, France and Morocco
Represented by Thomas Normand
RESPONDENT:
Yukatel Adana Demirspor A.S., Türkiye
Represented by Umur Varat
pg. 2
REF. FPSD-13685
I. Facts of the case
1.
The French / Moroccan player Younes Belhanda (hereinafter: Player or Claimant) and the
Turkish club Yukatel Adana Demirspor A.S. (hereinafter: Club or Respondent) entered into
an employment contract valid until 31 May 2024 (hereinafter: Employment Contract).
2.
From June until December 2023, the parties exchanged correspondences concerning
outstanding remuneration and a potential settlement between them.
3.
On 28 December 2023, the parties 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).
4.
Pursuant to the Termination Agreement, the Club undertook to pay to the Player a total
amount of EUR 1,200,000 net, payable as follows:
•
•
•
5.
EUR 344,500 by 15 January 2024;
EUR 480,000 by 30 March 2024; and
EUR 375,500 by 30 May 2024.
Furthermore, the Termination Agreement reads as follows, quoted verbatim:
“Should the Club fail to pay timely to the Player any of the net sums stipulated in the
payment schedule set above herein due to any and all reasons after a grace period of 15
(fifteen) business days, the Club shall become immediately liable to pay to the Player the
total amount of the Agreement in addition to a contractual penalty set as follows:
EUR 50,000 (fifty thousand euros) net if the Club has not paid the first instalment
by the deadline;
EUR 40,000 (fourty thousand euros) net if the Club has not paid the second
instalment by the deadline;
EUR 30,000 (thirty thousand euros) net if the Club has not paid the third
instalment by the deadline.
The maximum amount of contractual penalty may be EUR 50,000 (fifty thousand euros)
net. Amounts, which have already been paid under the schedule set above shall be
deducted.
E.g. if Club make the first instalment within the deadline yet fails to pay second and third
instalments within the stated deadline, Club shall pay 50.000 Euro net penalty”.
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REF. FPSD-13685
6.
On 22 January 2024, the Player put the Club in default for the payment of the first
instalment under the Termination Agreement. He did not grant any specific deadline for
the breach to be cured.
7.
On 14 February 2024, the Player lodged the claim at hand before FIFA for overdue payables.
In particular, the Player requested to be awarded the following amounts:
•
EUR 1,200,000 net corresponding to the sum under the Termination Agreement
(i.e., the three instalments);
•
EUR 50,000 net as contractual penalty; and
•
EUR 8,000 as legal costs.
8.
The Player filed no request for interest.
9.
On 21 March 2024, the Club submitted its reply to the claim. In doing so, it acknowledged
its default towards the Player, however argued that the debt was not accelerated because
the Player failed to grant the grace period of 15 days.
10. Furthermore, the Club argued that it was prevented to make the payment due to financial
impact of the earthquake in Türkiye and especially the city of Adana. 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 the order.
11. Given the above, the Club requested that the claim be rejected. Alternatively, it claimed
that it should only be ordered to pay the first instalment because the acceleration clause
was not successfully triggered.
12. The requests for relief of the Club were as follows, quoted verbatim:
“1. To REJECT all the claims of Claimant.
2. The Respondent [...] kindly requests from Football Tribunal to REJECT the case, if the
Tribunal decides to accept the case be decided only for the first installement of Mutual
Termination Agreement which is EUR 344.500 NET.
3. To order to pay Claimant to pay legal expenses, judicial cost and attorney fee to the
Respondent”.
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REF. FPSD-13685
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. First of all, the Dispute Resolution Chamber (hereinafter: 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 14 February 2024 and submitted for decision
on 18 April 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.
14. 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 (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 French/Moroccan
player and a Turkish club.
15. 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 Regulations on the Status and Transfer of Players (February 2024 edition) and
considering that the present claim was lodged on 14 February 2024, the cited edition of
said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
16. 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
17. 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.
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REF. FPSD-13685
i. Main legal discussion and considerations
18. The foregoing having been established, the Chamber moved to the substance of the matter
and took note of the fact that it pertains to a claim for outstanding remuneration and
penalty, based on the Termination Agreement.
19. In this context, the DRC acknowledged that it remained undisputed between the parties
that the first instalment of the Termination Agreement was not paid by Club. However, the
latter argued that (i) it was prevented from complying with its duties due to the earthquake
in Türkiye and the financial consequences that followed; and, in any event, (ii) the
acceleration / penalty clause was not triggered because the Player failed to grant a 15-day
deadline.
20. While considering the above and despite being mindful of the argumentation of Club, the
Chamber highlighted that the earthquake took place in February 2023, whereas the parties
concluded the Termination Agreement in December 2023. It followed, in the Chamber’s
view, that at the time the Club settled its obligations and concurred with the wording of the
Termination Agreement, it was (or at least should have been) fully aware of its financial
capabilities. As such, the Chamber deemed that the Club could not now benefit from its
own tort by referring to an unforeseen event – which in fact had long happened and cannot
be deemed as an extraordinary element unbeknown to the parties.
21. By the same token, the DRC observed that the Club failed to provide any documentary
evidence supporting the alleged impossibility to perform the payments under the
Termination Agreement and/or any attempt to avoid litigation by reaching an amicably
solution with the Player. Conversely, the Chamber acknowledged that the Club has been
recently involved in multiple transactions in TMS, therefore pursuing its footballing
activities with seemingly normality.
22. By way of conclusion, the DRC 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.
23. In continuation, the Chamber turned its attention to the parties’ differences as to the
accelerated amount and penalty. In this respect, the DRC recalled that the caput of the
relevant provision as follows:
“Should the Club fail to pay timely to the Player any of the net sums stipulated in the
payment schedule set above herein due to any and all reasons after a grace period of 15
(fifteen) business days, the Club shall become immediately liable to pay to the Player the
total amount of the Agreement in addition to a contractual penalty set as follows”.
24. While considering the above, the Chamber determined that the delivery of a default notice
by the Player was not a condition sine qua non for the acceleration of the amount, let alone
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REF. FPSD-13685
the explicit mention to a grace period. To the contrary, the DRC was of the opinion that the
abovementioned provision is clear and unequivocal to establish that the default for a
longer period than 15 days would immediately entail the acceleration of the entire debt.
25. Consequently, the Chamber decided that the acceleration clause was indeed triggered,
hence the Player became entitled to the EUR 1,200,000 net as well as the penalty of EUR
50,000 net. For the completeness, the DRC remarked that such penalty was also
proportionate in line with the well-established jurisprudence of the Football Tribunal.
26. Finally, the DRC highlighted that no interest was awarded because not requested by the
Player (ne ultra petita).
ii. Compliance with monetary decisions
27. 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.
28. 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.
29. Therefore, bearing in mind the above, the DRC decided 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.
30. 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.
31. 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.
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REF. FPSD-13685
d. Costs
32. 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.
33. 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.
34. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 8
REF. FPSD-13685
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Younes Belhanda, is partially accepted.
2.
The Respondent, Yukatel Adana Demirspor A.S., must pay to the Claimant the following
amount(s):
- EUR 1,200,000 net as outstanding remuneration; and
- EUR 50,000 net as contractual penalty.
3.
Any further claims of the Claimant are rejected.
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
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REF. FPSD-13685
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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