DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 27 February 2020,
in the following composition:
Clifford J. Hendel (US A), Deputy Chairman
Roy Verm eer (The Netherlands ), member
S tefano La Porta (Italy ), member
on the claim presented by the player,
Mr Yas s ine Benzia, France
represented by Mr Aziz Bora Durmaz
as Claimant
against the club,
Fenerbahce S K, Turkey
as Respondent
regarding a contractual dispute
between the parties in connection with overdue payables
Player Yassine Benzia, France / Club Fenerbahce, Turkey
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I.
Facts of the cas e
1.
On 31 August 2018, the Player (or Claimant) and the Club (or Respondent) signed an
employment contract valid as from the signing date until 31 May 2019, “or alternatively at
any later date on which the Club has an official match to be played during the 2018-2019
football season.”
2.
Clause 6 of the contract, in particular a.1), stipulates that the Player is entitled to the sum of
EUR 1,800,000, “net of Turkish tax” for the football season 2018/2019, whereas the
aforementioned amount must be paid in 9 equal instalments “on or before” the 25th day of
each month, as from September 2018 until May 2019.
3.
Clause 6 of the contract, in particular b.1), further establishes that the Player is entitled to
an “attendance fee, net of Turkish tax for the official matches played only in Turkish Super
Lig and UEFA Europa League for 2019-2019”, as follows: ”In case the player starts in the first
11 (eleven) for the club in an official match mentioned above, the club shall pay 10.000 Euro
(the thousand euros) net to the player as an attendance fee per match provided that the
club wins the match”.
4.
Clause 6 of the contract, in particular d), further stipulates: “The club shall provide the player
with an appropriate house (with the rental fee of maximum 4.000.- USD) for the use of the
player during the whole period of the contract. All the lease costs related the player’s
accommodation which excesses the amount of 4.000.- USD shall be borne by the player. The
player hereby gives his consent in advance to the club to set off any excessive amount paid
by the club for his accommodation against his receivables from the club”.
5.
By correspondence dated 9 April 2019, the Player put the Club in default of payment of
EUR 400,000, corresponding to the outstanding salaries that were due on 25 February 2019
and 25 March 2019, setting a time limit of 10 days, in order to remedy the default, to no
avail.
6.
By correspondence dated 12 June 2019, the Player put the Club in default of payment of
EUR 800,000, corresponding to the outstanding salaries that were due on 25 February 2019,
25 March 2019, 25 April 2019 and 25 May 2019, setting a time limit of 10 days, in order to
remedy the default, to no avail.
7.
On 8 July 2019, the Player put the Club in default of payment of EUR 800,000, corresponding
to the outstanding salaries that were due on 25 February 2019, 25 March 2019, 25 April 2019
and 25 May 2019, setting a time limit of 10 days, in order to remedy the default, to no avail.
8.
On 24 October 2019, the Player put the Club in default of payment of EUR 820,000,
corresponding to the outstanding salaries that were due on 25 February 2019, 25 March
2019, 25 April 2019 and 25 May 2019 and two attendance fees. Moreover, the Player
requested the payment of USD 36,000, corresponding to rental allowances. The Player
granted the Club a time limit of 10 days, in order to remedy the default, to no avail.
Player Yassine Benzia, France / Club Fenerbahce, Turkey
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9.
On 5 November 2019, the Player lodged a claim against the Club at FIFA, asking that the
Club be ordered to pay to him overdue payables in the amount of EUR 820,000 and USD
36,000, “net of Turkish tax”, corresponding to the outstanding salaries, two attendance fees
and the rental allowance, broken down in the following manner:
10.
Furthermore, the Player requested 5% default interest p.a. “in accordance with Article 104/1
of the Swiss Code of Obligations until the date of effective payment.”
11.
The club, on its part, rejected the player’s claim.
12.
In this regard, the club held that, according to its financial records, it has paid EUR 17,233
on behalf of the Player during the time he was under contract with it. In support of its
allegation the club enclosed several pieces of documentation.
13.
Furthermore, with regards to the rental allowance claimed, the club held that the wording
of the contract does not mean that the Respondent has to pay USD 4,000 to the Player every
month during the term of the contract. In this respect, it held that since the Player did not
submit any document, “it is unknown that how much has the Player paid for his rent during
his stay in Istanbul as a Player of the Respondent”. As the rental allowance is not a monthly
obligation of the Respondent, it cannot be subject to the calculation if it is not documented.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the DRC analysed whether it was competent to deal with the matter at hand. In
this respect, it took note that the present matter was submitted to FIFA on 5 November
Player Yassine Benzia, France / Club Fenerbahce, Turkey
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2019. Consequently, taking into account the wording of art. 21 of the 2019 Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) the aforementioned edition is applicable to the matter at
hand.
2.
Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed that
in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of the
Regulations on the Status and Transfer of Players (edition October 2019) it is competent to
deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a French player and a Turkish club.
3.
Furthermore, the DRC analysed which regulations should be applicable as to the substance
of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2
of the Regulations on the Status and Transfer of Players, and considering that the present
claim was lodged on 5 November 2019, the October 2019 edition of said regulations
(hereinafter: Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the substance of the matter. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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.
Having said this, the DRC acknowledged that the Claimant and the Respondent signed an
employment contract valid as from 31 August 2018 until 31 May 2019, “or alternatively at
any later date on which the Club has an official match to be played during the 2018-2019
football season”, in accordance with which the Claimant was entitled to receive from the
Respondent, inter alia, the sum of EUR 1,800,000 “net of Turkish tax” for the season
2018/2019, payable in 9 equal instalments, an attendance fee of EUR 10,000 for matches
won in which the player was in the starting 11 and an accommodation in the maximum
amount of USD 4,000.
6.
The Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the
Respondent has overdue payables towards him in the total amount of EUR 820,000 and USD
36,000, “net of Turkish tax”, corresponding to the outstanding salaries, two attendance fees
and rental allowance.
7.
In this context, the DRC took particular note of the fact that, on 9 April 2019, 12 June 2019,
8 July 2019 and 24 October 2019, the Claimant put the Respondent in default of payment
of the aforementioned amounts, setting in his last default notice a time limit expiring on 3
November 2019 in order to remedy the default.
8.
Consequently, the DRC concluded that the Claimant had duly proceeded in accordance with
art. 12bis par. 3 of the Regulations, which stipulates that the creditor (player or club) must
Player Yassine Benzia, France / Club Fenerbahce, Turkey
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have put the debtor club in default in writing and have granted a deadline of at least ten
days for the debtor club to comply with its financial obligation(s).
9.
Subsequently, the DRC took into account that the Respondent, for its part, held that it paid
EUR 17,233 on behalf of the Player during the contract and that the rental allowance, as per
the contract, shall only be reimbursed to the player in case he presents evidence of having
incurred in such costs.
10.
In this regard, the DRC, referring to art. 12 par. 3 of the Procedural Rules, as per which “any
party claiming a right on the basis of an alleged fact shall carry the burden of proof”, noted
that the documentation provided by the club in support of the allegation of payment of the
amount of EUR 17,233 consists of random receipts which do not contain any reference as to
which concept they refer to and are therefore all but meaningful or helpful in support of
the club’s position. Furthermore, the Chamber noted that the amount allegedly paid is
considerably lower than the amount claimed by the player. Thus, the Chamber decided that
such allegations of the club must be rejected.
11.
The player’s remuneration is duly stipulated in the contract and no solid proof of payment
or valid justification was provided by the club for their non-payment. Thus, the amount of
EUR 800,000 is due to the player.
12.
As to the attendance fees, the Chamber noted that not only the player provided enough
evidence of his entitlement to the amount of EUR 20,000, but also the club did not contest
his right to receive such amount. Thus, this amount is also payable to him.
13.
With respect to the allegations of the club related to the accommodation fees, the Chamber,
after analysing the wording of the relevant contractual clause, concluded that the latter in
fact establishes that the club would provide the player with a house in the maximum rent
amount of USD 4,000 and not that this amount is directly payable to the player on a monthly
basis. As such, the Chamber once again referred to art. 12 par. 3 of the Procedural Rules and
concluded that if the player had incurred in rental costs, those costs could be reimbursed;
however, the Claimant has not provided evidence of incurring in these costs and as such, this
amount cannot be awarded.
14.
On account of the aforementioned considerations, the DRC established that the Respondent
failed to remit to the Claimant the total amount of EUR 820,000 corresponding to
outstanding salaries of EUR 800,000 and outstanding attendance fees of EUR 20,000, plus
interest of 5% p.a. as from 5 November 2019 until the date of effective payment.
15.
In this regard, the DRC wished to highlight that the aforementioned contractual attendance
fees in the amount of EUR 20,000 do not fall within the scope of art. 12bis of the
Regulations.
16.
The DRC established that the Respondent had delayed the due payment of the player’s
remuneration (EUR 800,000) for more than 30 days without a prima facie contractual basis.
Player Yassine Benzia, France / Club Fenerbahce, Turkey
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17.
Consequently, the DRC decided that, in accordance with the general legal principle of pacta
sunt servanda, the Respondent is liable to pay to the Claimant the total amount of EUR
820,000, EUR 800,000 of which meet the criteria of overdue payables.
18.
In continuation, taking into account the consideration under number II./17. above, the DRC
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 without a prima facie contractual basis may
be sanctioned in accordance with art. 12bis par. 4 of the Regulations.
19.
The DRC established that in virtue of art. 12bis par. 4 of the Regulations it has competence
to impose sanctions on the Respondent. In this context, the DRC highlighted that, on several
occasions within the past 2 years, the Respondent had already been found to have delayed
a due payment for more than 30 days without a prima facie contractual basis, as a result of
which, on 25 February 2020, a fine had been imposed on the Respondent by the DRC.
20.
Moreover, the DRC referred to art. 12bis par. 6 of the Regulations, which establishes that a
repeated offence will be considered as an aggravating circumstance and lead to a more
severe penalty.
21.
Bearing in mind the above, the DRC decided to impose a proportionally more severe fine on
the Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations. On account of
the above and taking into consideration the amount due of EUR 800,000 of overdue
payables, the DRC regarded a fine amounting to CHF 60,000 as appropriate and hence
decided to impose said fine on the Respondent.
22.
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.
23.
In this regard, the DRC 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.
24.
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.
Player Yassine Benzia, France / Club Fenerbahce, Turkey
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25.
Finally, 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. 24bis par.
3 of the Regulations.
26.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Yassine Benzia, is partially accepted.
2.
The Respondent, Fenerbahce SK, has to pay to the Claimant the amount of EUR 820,000,
plus interest of 5% p.a. as from 5 November 2019 until the date of effective payment.
3.
Any further claim is rejected.
4.
The
Respondent
is
ordered
to
pay
a
fine
in
the
amount
of
CHF 60,000. The fine is to be paid w ithin 45 day s of notification of the present decision to
FIFA to the following bank account with reference to case nr. 19-02088:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
5.
The Claimant is directed to inform the Respondent, immediately and directly, preferably to
the e-mail address as indicated on the cover letter of the present decision, of the relevant
bank account to which the Respondent must pay the amount mentioned under point 2.
above.
6.
The Respondent shall provide evidence of payment of the due amount in accordance with
point 2. above to FIFA to the e-mail address [email protected], duly translated, if need be,
into one of the official FIFA languages (English, French, German, Spanish).
7.
In the event that the amount due in accordance with point 2. above is 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 amount is paid.
Player Yassine Benzia, France / Club Fenerbahce, Turkey
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9.
In the event that the amount due in accordance with points 2. and above is 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.
*****
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According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
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within 21 days of receipt of notification of this decision and shall contain all the elements in
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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 (CAS)
Avenue de Beaumont 2
CH-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 Yassine Benzia, France / Club Fenerbahce, Turkey
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