Labour Disputes
Texto da decisão
REF FPSD-5169
Decision of the
Dispute Resolution Chamber
passed on 21 April 2022
regarding an employment-related dispute concerning the player Walter
Bwalya
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairperson
Angela Collins (Australia), member
Dana Mohamed Al-Noaimi (Qatar), member
CLAIMANT:
Walter Bwalya, Congo
RESPONDENT:
Yeni Malatyaspor, Turkey
Represented by Burak Çakir
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I.
Facts of the case
1.
On 6 September 2021, the Congolese player Walter Bwalya (hereinafter: the player) and the
Turkish club Yeni Malatyaspor (hereinafter: the club) concluded an employment agreement
(hereinafter: the contract), valid between 6 September 2021 and 31 May 2022, based on
which the player would play on loan basis for the club, being on loan from his club of origin,
the Egyptian club Al Ahly, and based on which the player was entitled to the following
amounts:
•
•
•
•
•
•
•
•
•
•
•
2.
USD 90,000 on 8 September 2021;
USD 30,000 on 30 September 2021;
USD 120,000 on 30 October 2021;
USD 60,000 on 30 November 2021;
USD 60,000 on 30 December 2021;
USD 60,000 on 30 January 2022;
USD 60,000 on “30” February 2022;
USD 60,000 on 30 March 2022;
USD 60,000 on 30 April 2022;
USD 60,000 on 30 May 2022;
a housing and car allowance of TRY 7,000 per month.
On 28 December 2021, the parties concluded a settlement agreement, based on which the
following was agreed:
•
•
•
•
•
Article 2.a of the settlement agreement: the player has outstanding salaries of USD
180,000, however the player waives an amount of USD 30,000;
Article 2.c of the settlement agreement: the player would receive an amount of USD
150,000 net, as follows:
a. USD 100,000 on 28 December 2021;
b. USD 20,000 on 15 January 2022;
c. USD 30,000 on 15 February 2022.
‘In event of default of the b. or c. payments by Malatya, player shall give Malatya notice
in writing in relation to the overdue payable, granting 10 natural days as of the notice
receipt to Malatya, deliver the payment of such instalment to player. After this will place,
Yeni Malatyaspor in automatic default and will generate in favor of player a penalty of
the sum of USD 10,000 for breach of instalment b. and USD 15,000 for breach of
instalment c.’.
‘Subject to the fulfilment of the conditions provided for an article 2.c, the player hereby
declares and accepts that he will not have any claims from the club, compensation,
remuneration or in any other name‘;
‘In sake of clarity, the parties agree to terminate the contract dated 6 September 2021
with their mutual consents regardless of the name under which, without claiming any
further remuneration and any further compensation, (except for the amounts payable to
the player as specified under article 2.c), payable from each other. In conjunction with
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the conclusion of the present agreement, the contract dated 6 September 2021
concluded between the parties concerned will be immediately ended with its all effects
and consequences and also any agreement, protocol and/or consensus, which
determined employment relationship between the parties, become invalid. The player
accepts, declares and undertakes by reason of the employment relationship with Yeni
Malatyaspor and regardless of the name under which there is not any rights in receivables
from Yeni Malatyaspor (except for the amounts payable to the player as specified under
article 2.c) above to waive from any further compensation, (except for the amounts
payable to the player as specified under article 2.c) above and any other claims
irrevocably, to release Yeni Malatyaspor completely, absolutely and irrevocably from all
future liabilities resulting from the execution of contract dated 6 September 2021’.
3.
On 13 December 2021, the player put the club in default for the outstanding amount of USD
180,000 and TRY 21,000 as housing and car allowance, providing it to 15 days’ deadline to
remedy its default, however to no avail.
4.
On 15 December 2021, the head coach of the club informed the player that the club was no
longer in need of his services and that he was advised to train individually in the gym, despite
the player being a regular call of in the previous 14 official matches.
5.
Afterwards, the parties concluded a settlement agreement, cf. point 2. above.
6.
On 22 January 2022, the player put the club in default for the outstanding amount of USD
20,000 (second instalment of the settlement agreement), providing it a 10 days’ deadline to
remedy its default and indicating that otherwise a penalty of USD 10,000 would fall due,
however to no avail.
7.
On 3 February 2022, the player put the club again in default for the outstanding amount of
USD 30,000 (second instalment of the settlement agreement, plus penalty of USD 10,000),
providing it to 9 days’ deadline to remedy its default and indicating that otherwise an
additional penalty of USD 15,000 would fall due and that a claim before FIFA will be lodged,
however to no avail.
8.
After the conclusion of the settlement agreement, the player – on 28 January 2022 - returned
to his club of origin, the Egyptian club Al Ahly, and on 31 January 2022, transferred on loan
basis to the Qatari club Al Sailiya SC, with which club the player signed an employment
contract, valid between 1 February and 30 June 2022, during which period the player was
entitled to receive the total amount of USD 200,000.
II. Proceedings before FIFA
9.
On 12 February 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
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a.
Position of the player
10. According to the player, he received the amount of USD 100,000, due on 28 December 2021,
but that the other instalments remained outstanding.
11. The requests for relief of the player, were the following:
Outstanding remuneration:
•
USD 80,000 as outstanding amount under the settlement agreement, as follows:
USD 20,000 as outstanding remuneration for October 2021 (the player only
received USD 100,000 out of the total amount of USD 120,000), plus 5% interest
p.a. as from 30 October 2021;
USD 60,000 as outstanding remuneration for November 2021, plus 5% interest
p.a. as
from 30 November 2021;
Compensation for breach of contract:
•
USD 360,000 as residual value of the contract in the period between December 2021
and May 2022, corresponding to 6 instalments of USD 60,000 each;
Alternative request:
• USD 30,000 as second instalment of USD 20,000 as per the settlement agreement, plus
USD 10,000 as penalty, plus 5% interest p.a. as from 15 January 2022;
• USD 45,000 as third instalment of USD 30,000 as per the settlement agreement, plus
USD 15,000 as penalty, plus 5% interest p.a. as from 15 January 2022.
• USD 2,060, equivalent to TRY 28,000 as outstanding housing and car allowance in the
period between September 2021 and December 2022.
• an additional amount of USD 60,000, ‘as an amount of USD 60,000 was due only two
days after the date of signing of the settlement agreement’;
• USD 160,000 as moral and sporting damages.
12. Furthermore, the player requested for sanctions based on art. 12bis to be imposed on the
club, as well as procedural costs to be imposed on the club.
b. Position of the Respondent
13. According to the Respondent, based on the following clause: ‘subject to the fulfilment of the
conditions provided for in article 2.c, the player hereby declares and accepts that he will not
have any claims from the club, compensation, remuneration or in any other name‘, the player
has no right to claim compensation.
14. Moreover, the club argues that the penalty clause in the settlement agreement should be
deemed null, as it is excessive and disproportionate.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. 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 16 February 2022 and submitted for
decision on 21 April 2022. 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.
16. 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. b) of the
Regulations on the Status and Transfer of Players (March 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 Congolese player
and a Turkish club.
17. 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 (March 2022 edition), and
considering that the present claim was lodged on 16 February 2022, the August 2021 edition
in force on the date of claim edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
b. Burden of proof
18. 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
19. 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
20. The foregoing having been established; the Chamber moved to the substance of the matter
and took note of the fact that the parties strongly dispute the total amount that was
outstanding and due to the Claimant as per the settlement agreement concluded between
the parties.
21. In this context, the Chamber acknowledged that its task was to determine whether the
amounts claimed by the player had indeed already fallen due and were to be paid by the
club.
22. In this respect, the Chamber noted that according to the settlement agreement signed
between the player and the club, the latter undertook to pay the amount of USD 20,000 to
the player by 15 January 2022 and the amount of USD 30,000 by 15 February 2022, however,
it remained uncontested that the club failed to do so.
23. The Chamber remarked that in its submissions, the club, inter alia, argued that the player has
no right to claim compensation.
24. In this respect, the Chamber pointed out that in light of the fact that the club failed to comply
with its financial obligations as per the settlement agreement, the player would therefore be
entitled to claim his outstanding remuneration and compensation for a breach of contract,
as per the terms of the settlement agreement, moreover several monthly salaries remained
outstanding at the date of conclusion of the settlement agreement.
25. As a result of the foregoing, the members of the Chamber came to the conclusion that
arguments of the club cannot be upheld.
ii. Consequences
26. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of the settlement agreement committed by the club.
27. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the club is liable to pay to the player his outstanding remuneration
in amount of USD 80,000, corresponding to the outstanding amounts for the months of
October and November 2021
28. What is more, based on its well-established jurisprudence as well as taking into account the
player’s request, the Chamber decided to award 5% interest p.a. on the above amounts from
the respective due dates until the date of effective payment.
29. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the Chamber
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firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of
compensation shall be calculated, in particular and unless otherwise provided for in the
contract at the basis of the dispute, with due consideration for the law of the country
concerned, the specificity of sport and further objective criteria, including in particular, the
remuneration and other benefits due to the player under the existing contract and/or the new
contract, the time remaining on the existing contract up to a maximum of five years, and
depending on whether the contractual breach falls within the protected period.
30. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which the
parties had beforehand agreed upon an amount of compensation payable by the contractual
parties in the event of breach of contract. In this regard, the Chamber established that no
such compensation clause was included in the employment contract at the basis of the matter
at stake.
31. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said
provision provides for a non-exhaustive enumeration of criteria to be taken into consideration
when calculating the amount of compensation payable.
32. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract from
the date of its unilateral termination until its end date. Consequently, the Chamber concluded
that the amount of USD 360,000 (i.e. the residual value of the contract) serves as the basis
for the determination of the amount of compensation for breach of contract.
33. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
34. Indeed, the player found employment with the Qatari club Al Sailiya SC, with which club the
player signed an employment contract, valid between 1 February and 30 June 2022, during
which period the player was entitled to receive the total amount of USD 160,000 for the
overlapping period. Therefore, the Chamber concluded that the player mitigated his damages
in the total amount of USD 160,000.
35. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of USD 200,000
to the player (i.e. USD 360,000 minus USD 160,000), which was to be considered a
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reasonable and justified amount of compensation for breach of contract in the present
matter.
36. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said compensation
at the rate of 5% p.a. as of 16 February 2022 until the date of effective payment.
iii. Compliance with monetary decisions
37. 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.
38. 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.
39. 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
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.
40. 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.
41. 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.
d. Costs
42. 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.
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43. 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.
44. 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, Walter Bwalya, is accepted.
2.
The Respondent, Yeni Malatyaspor, has to pay to the Claimant, the following amount(s):
(a)
USD 80,000 as outstanding remuneration, plus 5% interest p.a.,until the date of
effective payment as follows:
-
on the amount of USD 20,000 as from 1 November 2021;
on the amount of USD 60,000 as from 1 December 2021.
(b)
USD 200,000 as compensation for breach of contract without just cause, plus 5%
interest p.a. as from 16 February 2022 until the date of effective 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. 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 the ban shall
be of 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 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
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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).
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