DRC Overdue Payables
Texto da decisão
REF FPSD-3063
Decision of the
Dispute Resolution Chamber
passed on 3 November 2021
regarding an employment-related dispute concerning the player Issam
Chebake
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairperson
Peter Lukasek (Slovakia), member
Zuriz Zapisotskiy (Ukraine), member
CLAIMANT:
Issam Chebake, Morocco
Represented by Selçuk Demir
RESPONDENT:
Zeni Malatyaspor, Turkey
Represented by Burak Çakir
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REF FPSD-3063
I.
Facts of the case
1.
On 1 June 2019, the Morocan player Issam Chebake (hereinafter: the Claimant) and the
Turkish club Yeni Matatyaspor (hereinafter: the Respondent) signed an employment contract,
valid as from the date of signature until 31 May 2021 (hereinafter: the Contract).
2.
Article 3 of the Contract reads inter alia as follows:
“For 2019/2020 Football Season: NET 630.000-Euro
120.000-Euros of the above mentioned amount has to be paid on 10th September 2019
90.000- Euros of the above mentioned amount has to be paid on 30th September 2019
The rest of the aforementioned amount is to be paid to the PLAYER by the CLUB in 8 (eight) equal
installments on the below mentioned dates:
-
EUR 52,500 payable on 30 October 2019;
EUR 52,500 payable on 30 November 2019;
EUR 52,500 payable on 30 December 2019;
EUR 52,500 payable on 30 January 2020;
-EUR 52,500 payable on 28 February 2020;
-EUR 52,500 payable on 30 March 2020;
-EUR 52,500 payable on 30 April 2020;
-EUR 52,500 payable on 30 May 2020.
If the footballer plays 25 official league match in first eleven, player will be entitled to receive
25.000 Euro Net bonus.
For 2020-2021 Football Season: NET 625,000-Euro
92.500-Euros of the above mentioned amount has to be paid on 10th September 2020.
92.500- Euros of the above mentioned amount has to be paid on 30th September 2020
The rest of the aforementioned amount is to be paid to the PLAYER by the CLUB in 8 (eight) equal
installments on the below mentioned dates:
-
EUR 55,000 payable on 30 October 2020;
EUR 55,000 payable on 30 November 2020;
EUR 55,000 payable on 30 December 2020;
EUR 55,000 payable on 30 January 2021;
EUR 55,000 payable on 28 February 2021;
EUR 55,000 payable on 30 March 2021;
EUR 55,000 payable on 30 April 2021;
EUR 55,000 payable on 30 May 2021.
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If the footballer plays 25 official league match in first eleven, player will be entitled to receive
25.000 Euro Net bonus”.
3.
On 12 February 2021, the Claimant sent a default notice to the Respondent, requesting
payment of EUR 162,500 as outstanding salaries for October 2020 to January 2021 and
Turkish Lira (“TL”) 12,000 as overdue rent, granting 15 days to comply with its contractual
obligations.
4.
On 9 April 2021, the Claimant sent a default notice to the Respondent, requesting payment
of EUR 131,250 as outstanding salaries for the months of January to March 2021 and TL
8,000 as rent payments, granting it 15 days to comply with its contractual obligations.
5.
On 29 April 2021, the Claimant sent another letter to the Respondent reminding it to comply
with its financial obligations further to his previous default notice.
6.
On 9 June 2021, the Claimant sent a default notice to the Respondent, requesting payment
of EUR 326,250 as outstanding salaries for the months of February and May 2021, including
EUR 81,250 as advance payment and EUR 25,000 as match bonus, granting it 15 days to
comply with its contractual obligations, to no avail.
II. Proceedings before FIFA
7.
On 16 July 2021, 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
8.
According to the Claimant, at the beginning of the 2019/2020 season, the Respondent
subjected him to “discriminatory and humiliating treatment”.
9.
He adds that the Respondent always partially paid his salaries and he as a result had to send
several default notices, to no avail.
10. As a result, the Claimant submits that he is entitled to outstanding remuneration in the
amount of EUR 326,250 which remain unpaid by the Respondent.
11. According to the Player, the Respondent had also been notified that failure to pay the
outstanding remunerations, he would be entitled to claim for damages as a result of the
“discrimination and harassment he suffered at the hands of the Club”, he therefore is
claiming compensation in the amount of EUR 330,000.
12. The Claimant requested the DRC to award him:
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REF FPSD-3063
a. EUR 326,250 as outstanding salaries for the 2020/2021 season as follows:
i. EUR 220,000 (EUR 55,000 per month from February to May 2021);
ii. EUR 81,250 as advance payment due 30 September 2020;
iii. EUR 25,000 as match bonuses for 25 games.
b. EUR 330,000 as moral damages in accordance with article 17 (1) of the RSTP
c. 5% interest p.a. on the total amounts payable in the event that the Club does not pay
within 30 days;
d. Sanction the Club.
b. Position of the Respondent
13. According to the Respondent, the Claimant’s request for compensation shall be rejected as
there is no unilateral termination of the contract and therefore a claim for compensation is
“not legally possible”.
14. The Respondent adds that during the course of the contract, “it paid off almost the entire
amount due to the contract”.
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 July 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.
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 (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 Moroccan 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 (August 2021 edition), and
considering that the present claim was lodged on 16 July 2021, the February 2021 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
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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.
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 no termination notice had been produced be either party and
the Contract naturally expired at the end of its term.
21. In this context, the Chamber acknowledged that it its task was to determine whether the
Claimant was entitled to the amounts claimed.
22. The Chamber observed that in accordance with the Contract, the Respondent was obliged to
pay the Claimant the total amount of EUR 625,000 for the season 2020/2021.
23. The members of the Chamber observed that the Respondent had failed to submit any
supporting evidence in relation to the payment to the Claimant of the amounts he claims to
be entitled to.
24. Furthermore, the Chamber could observe that the Claimant put the Respondent in default
for the due amount, granting a deadline of 10 days to comply.
25. On account of the aforementioned, the Chamber established that the Respondent, without
any valid reason, breached the terms of the Contract and failed to remit to the Claimant the
total amount of EUR 301,250 as outstanding salaries.
26. In relation to the Claimant’s claim for EUR 25,000 as match bonuses, the Chamber noted
that the Respondent did not contest this claim and did not provide any proof of payment.
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27. The Chamber determined that in accordance with the general legal principle of pacta sunt
servanda, the Respondent was to pay the amount of EUR 326,250 as outstanding
remuneration to the Claimant.
28. Furthermore, taking into consideration the Claimant’s request as well as the constant practice
of the Football Tribunal in this regard, the DRC decided to award the Claimant interest on
said amount at the rate of 5% p.a. as of the respective due dates until the date of effective
payment.
ii. Consequences under art. 12bis of the Regulations
29. The DRC acknowledged that the Claimant put the Respondent in default for the due amount,
granting a deadline of 10 days to comply, to no avail. Hence, it confirmed that the requisites
for the application of the consequences of article 12bis of the Regulations had been duly met.
To this end, the Chamber 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.
30. Consequently, the Chamber 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 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).
31. On account of the aforementioned considerations, and bearing in mind that that the
Respondent failed to pay the amount due to the Claimant, the DRC established that the
Respondent had delayed a due payment for more than 30 days without a prima facie
contractual basis.
32. The Chamber established that in virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. Therefore, and considering that the
Respondent’s record with regards to the cited provision, the Chamber decided to impose a
fine on the Respondent in the amount of USD 20,000, in accordance with art. 12bis par. 4
lit. c) of the Regulations.
33. In this respect, the Chamber wished to highlight that a repeated offence will be considered
as an aggravating circumstance and lead to more severe penalty in accordance with art. 12bis
par. 6 of the Regulations
iii. Compliance with monetary decisions
34. 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.
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35. 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.
36. 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.
37. 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.
38. 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
39. 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.
40. 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.
41. 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, Issam Chebake, is accepted.
2.
The Respondent, Yeni Malatyaspor, has to pay to the Claimant, EUR 326,250 as outstanding
remuneration plus 5% interest p.a. as from the due dates until the date of effective payment
as follows:
-
On the amount of EUR 81,250 as of 1 October 2020;
On the amount of EUR 55,000 as of 1 March 2021;
On the amount of EUR 55,000 as of 1 April 2021;
On the amount of EUR 55,000 as of 1 May 2021;
On the amount of EUR 55,000 as of 1 June 2021;
On the amount of EUR 25,000 as of 1 June 2021;
3.
The Respondent is imposed a fine of USD 20,000 to be paid to FIFA within 30 days of the
notification of this decision. Such payment is to be made to the bank account below with
reference to the present proceedings:
UBS Zurich
366.677.01U (FIFA Players’ Status)
SWIFT: UBSWCHZH80A, Clearing number 230,
IBAN: CH 27 0023 0230 3666 7701U
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. 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.
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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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