Labour Disputes
Texto da decisão
REF FPSD-2865
Decision of the
Dispute Resolution Chamber
passed on 3 November 2021
regarding an employment-related dispute concerning the player Petrus Boumal
BY:
Omar Omgaro (Italy), Deputy Chairperson
Peter Lukasek (Slovakia), member
Yuriy Zapisotskiy (Ukraine), member
CLAIMANT:
Petrus Boumal, Cameroon
Represented by M. Selçuk Demir
RESPONDENT:
Buyuksehir Belediye Erzurumspor, Turkey
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REF FPSD-2865
I.
Facts
1.
On 1 September 2020, the parties signed a contract, valid as from the date of signature until
31 May 2022.
2.
Article 3 of the contract states that the Claimant was entitled to the amount of EUR 108,000
for the 2020/2021 season and the amount of EUR 108,000 for the season 2021/2022.
3.
On 6 September 2020, the parties concluded an amendment to the contract (hereinafter: the
amendment), based on which the Claimant’s total salary would be increased to the amount of
EUR 360,000 per season (hereinafter: the amended contract).
4.
Article 3 of the amendment states that “…remuneration specified in the present agreement
shall supersede those fixed under clause 3 of the professional player contract under the heading
"Other payments promised by the Club and Payment Style" and for better understanding as
from the conclusion of this amendment agreement the remunerations specified in the
professional player contract those fixed under clause 3 of the professional player contract under
the heading "Other Payments promised by the club and payment Style" shall be deprived of
binding effect upon BB Erzurumspor and shall remain without effect”.
5.
Based on article 3.1 of the amendment, the Claimant was entitled to the following payments:
-EUR 56,000 as down payment on or before 6
September 2020;2020/2021 season
-EUR 40,000 due on 30 September 2020;
-EUR 40,000 due on 30 October 2020;
-EUR 40,000 due on 30 November 2020;
-EUR 40,000 due on 30 December 2020;
-EUR 40,000 due on 30 January 2021;
-EUR 40,000 due on 28 February 2021;
-EUR 40,000 due on 30 March 2021;
-EUR 40,000 due on 30 April 2021;
-EUR 40,000 due on 30 May 2021.
2021/2022 season
-EUR 82,000 as down payment on 31 August 2021;
-EUR 40,000 due on 30 September 2021;
-EUR 40,000 due on 30 October 2021;
-EUR 40,000 due on 30 November 2021;
-EUR 40,000 due on 30 December 2021;
-EUR 40,000 due on 30 January 2022;
-EUR 40,000 due on 28 February 2022;
-EUR 40,000 due on 30 March 2022;
-EUR 40,000 due on 30 April 2022;
-EUR 40,000 due on 30 May 2022.
6.
On 16 May 2021, the parties signed a mutual termination agreement, based on which the
contract between the parties would be terminated and according to which the Respondent
agreed to pay the Claimant as follows:
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a.
b.
EUR 100,000 as the overdue amount payable on or before 30 June 2021;
EUR 40,000 as compensation payable on or before 21 May 2021
7.
Article 5 of the termination agreement further states that “In this respect upon the conclusion
of the present mutualtermination, release and waiver agreement, the player accepts, declares
and undertakes that BB Erzurumspor fulfilled its contractual obligations resulting from the
Contract dated 1 September 2020 and all the related protocols, agreements that govern the
employment relationship between the Parties concerned with respect to the 2020-2021Season
and 2021-2022, except for the amounts specified under article 3) above. For the avoidance of
doubt, the release of BB Erzurumspor by the Player shall include any and all claims for
remuneration due for 2020-2021 Season resulting from the Employment Contract and
protocols, agreements that govern the employment relationship between the Parties concerned
which were or could have been asserted in the proceedings before TFF, UEFA, FIFA, CAS,
national courts and enforcement offices, except for cases of failure of BB Erzurumspor to pay
to the Player theamounts specified herein pursuant to payment dates specified under article 3)”.
8.
Article 6 states that “For avoidance of doubt and ease of understanding, BB Erzurumspor and
Player upon conclusion of present Protocol, accept and undertake that they release each other
from all the liabilities and contractual duties resulting from the contract dated 1.9.2020 and all
the related protocols, agreements that govern the employment relationship between the Parties
concerned except for the BB Erzurumspor' s liability to pay to the Player the amounts specified
herein under article 3} above”.
9.
Article 7 of the termination agreement (penalty clause) states as follows: “Should BB
Erzurumspor fail to comply withthe payments stipulated under article 3 / point a-b) above, the
Player shall put the Club in default of the payment of overdue amounts by granting 3 business
days by submitting a default letter to email address [email protected] . In case BB
Erzurumspor does not proceed to pay the overdue amounts at the end of aforementioned timeframe i.e. 3 business days of grace period, an additional fine in the amount of NET 7.500.-EUR
shall accrue without any further notification to be issued and BB Erzurumspor shall remunerate
the Player with a finein the amount of NET 7.500.-EUR”.
10. On 8 April 2021 and 12 April 2021, the Claimant put the Respondent in default of payment for
the amount of EUR120,000, granting it 15 days to comply with its financial obligations, however
to no avail.
11. On 16 May 2021, the parties agreed to mutually terminate the contract subject to the payment
of EUR 140,000 tothe Claimant.
12. On 8 June 2021, the Claimant put the Respondent in default of payment for the amount of
EUR 40,000, grantingit 10 days to comply with its contractual obligations, however to no avail.
13. On 21 June 2021, the Claimant sent a “contract termination letter” to the Respondent.
14. On 28 June 2021, the Claimant lodged a claim against the Respondent at FIFA.
15. The Claimant requested that the DRC order the Respondent to pay:
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-EUR 140,000 in accordance with the termination agreement;
-EUR 7,500 as the agreed penalty fee as per the termination agreement;
-EUR 442,000 as the amount that was due for the 2021/2022 season under the (amended)
contract;
-EUR 216,000 as ‘damages’.
-5% interest p.a. in the event that the Respondent fails to make payment within 30 days
16. In support of his claim, the Claimant states that after the Respondent failed to respect its
contractual obligations, the parties agreed to mutually terminate the contract with the
agreement that he would paid EUR 100,000 as the outstanding remuneration and EUR 40,000
as compensation in accordance with the termination agreement.
17. The Claimant adds that in accordance with the termination agreement, he would also be
entitled to EUR 7,500as a penalty fee in case of non-payment.
18. According to the Claimant, the mutual termination agreement also provided that in case of nonpayment of theagreed amounts, the previous contractual situation would apply. As a result,
the Claimant submits that as the Respondent failed to pay the amount of EUR 140,000, article
5 of the termination agreement applies.
19. The Claimant adds that despite the default notice to the Respondent dated 8 June 2021, the
Respondent did not comply with its obligations to pay the amount of EUR 140,000 and that
as a result “he terminated the contract”.
20. Consequently, according to the Claimant, in application of article 5 of the termination
agreement, and the factthat he unilaterally terminated his contract, the Respondent should
pay the amounts due in the initial contract in the amount of EUR 442,000 for the 2021-2022
season.
21. In continuation, the Claimant submits that the Respondent failed to respect the terms of the
termination agreement and should be ordered to pay EUR 216,000 (the equivalent of 6
months’ salary) as additional compensation.
22. Despite being invited to do so, the Respondent did not reply to the claim.
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II. Considerations of the Dispute Resolution Chamber
a.
Competence and applicable legal framework
1. 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 21 June 2021 and submitted for decision
on 3 November 2021. Taking into account the wording of art. 34 of the October 2021 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 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 lit. a) OR b)
of the Regulations on the Status and Transfer of Players (August 2021 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 Cameroonian player
and a Turkish club.
3.
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 Player (August 2021 edition), and
considering that the present claim was lodged on 21 June 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b.
Burden of proof
4.
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
5.
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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i.
Main legal discussion and considerations
6.
The foregoing having been established, the Chamber moved to the substance of the matter, and
took note that the parties concluded an employment contract valid as from 1 September 2020
until 31 May 2022, which was subsequently amended on 6 September 2020. The Chamber
further noted that, on 16 May 2021, the parties concluded a termination agreement with the
conditions quoted in points I 7 et seq. above.
7.
Subsequently, the Chamber noted that the claimant lodged a claim before FIFA, by means of
which he requested the following:
-EUR 140,000 in accordance with the termination agreement;
-EUR 7,500 as the agreed penalty fee as per the termination agreement;
-EUR 442,000 as the amount that was due for the 2021/2022 season under the (amended)
contract;
-EUR 216,000 as ‘damages’.
-5% interest p.a. in the event that the Respondent fails to make payment within 30 days
8.
On the other hand, the DRC took into account that the Respondent, for its part, failed to present
its response to the claim of the Claimant, in spite of having been invited to do so. In this way, the
DRC considered that the Respondent renounced its right to defence. Furthermore, as a
consequence of the aforementioned consideration, the DRC concurred it shall take a decision
upon the basis of the documents already on file, in other words, upon the statements and
documents presented by the Claimant.
9.
With the abovementioned considerations in mind, the Chamber noted that, the parties signed a
mutual termination agreement , according to which the Respondent agreed to pay the
Claimant the amount EUR 140,000.
10. The Chamber then referred to article 6 of the termination agreement, according to which “For
avoidance of doubt and ease of understanding, BB Erzurumspor and Player upon conclusion of
present Protocol, accept and undertake that they release each other from all the liabilities and
contractual duties resulting from the contract dated 1 September 2020 and all the related
protocols, agreements that govern the employment relationship between the Parties concerned
except for the BB Erzurumspor' s liability to pay to the Player the amounts specified herein under
article 3above”.
11. Based on the aforementioned article 6, the Chamber understood that the parties had effectively
terminated the contract and that the termination agreement would remain in force, irrespective
of whether the amounts under the termination agreement were effectively paid.
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12. With the above in mind, the Chamber established that the parties to the contract mutually
terminated the contract subject to the payment of EUR 140,000 and that the Claimant is
entitled to said amount.
13. Additionally, the chamber noted that, in accordance with article 7 of the termination agreement,
the Respondent agreed to pay a penalty fee of EUR 7,500 in the event that it failed to respect the
payment terms of the termination agreement.
14. As a result, the Chamber established that the Claimant is entitled to EUR 7,500 as a penalty fee
for late payment, which is not considered to be disproportionate and/or excessive.
15. In sum, in accordance with the principle of pacta sunt servanda, the Chamber established that
the Respondent shall pay to the Claimant, the amount of EUR 147,500 (EUR 140,000 and EUR
7,500), as agreed in the termination agreement.
16. Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the Dispute Resolution Chamber decided to award 5% interest p.a.
over said amount as from the due dates, while underlining that no interest is applicable on the
penalty fee.
17. In addition, as to the player’s request for 442,000, corresponding to the previous contract, the
Chamber underlined once again that, following art. 6 of the termination agreement, the parties
settled their earlier liabilities arising from the previous employment contract. This, the Chamber
rejected the claimant’s request in this request.
18. Additionally, the Chamber rejected the Claimant’s claim for damages due to a lack of a regulatory
and/or contractual basis and due to a lack of evidence to support this request.
ii.
Compliance with monetary decisions
19. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 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.
20. 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.
21. 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
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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. 24bis par. 2, 4, and 7 of the Regulations.
22. 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.
23. 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. 8 of
the Regulations.
d. Costs
24. 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.
25. 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.
26. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Petrus Boumal, is partially accepted.
2. The Respondent, Buyuksehir Belediye Erzurumspor, has to pay to the Claimant, EUR 147,500 as
outstanding remuneration plus 5% interest p.a. as of 9 December 2021 until the effective date
of payment.
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. 24bis of the Regulations on the Status and Transfer of Players (February 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1.
2.
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.
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.
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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