Labour Disputes
Texto da decisão
REF. FPSD-8988
Decision of the
Dispute Resolution Chamber
passed on 20 April 2023
regarding an employment-related dispute concerning
the player Jeffrey Nana Darko Sarpong
BY:
Omar Ongaro (Italy), Deputy Chairperson
José Luis Andrade (Portugal), member
Peter Lukasek (Slovakia), member
CLAIMANT:
Jeffrey Nana Darko Sarpong, Netherlands
Represented by Yakub Kizilkaya
RESPONDENT:
Elazigspor, Turkey
Represented by Ercan Sevdimbaş
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REF. FPSD-8988
I. Facts of the case
1.
On 7 July 2017, the Dutch player, Jeffrey Nana Darko Sarpong (hereinafter: Claimant or
player) and the Turkish club, Elazigspor (hereinafter: club or Respondent) concluded an
employment contract (hereinafter: contract) valid as from 7 July 2017 until 31 May 2019.
2.
On 25 October 2018, the DRC decided that the player terminated the contract with just
cause and ordered the club to pay the player EUR 193,629 plus 5% interest p.a. as of 17
May 2018 as compensation for breach of contract as well as EUR 160,000 as outstanding
remuneration along with interest as follows:
3.
On 21 January 2022, the parties concluded an “agreement for a payment plan” (hereinafter:
payment plan).
4.
The payment plan under art. 2, “Payment conditions and enforcement of the decision”,
reads as follows:
-
-
-
“2.1 The total net amount of 353,629 Euros and its interest %5 per year as from the
due dates of each payment will be paid to the player.
2.2 The club will make an advance payment of EUR 25,000 on or before 22 January
2022 and this amount will be deducted from the total amount.
2.3 The club is going to provide a cheque of 152,000 Turkish Lira with the payment
date of 31st May 2022.
2.4 With the compliance of the above-given conditions (2.2 and 2.3), the player hereby
confirm to inform FIFA and TFF to lift the transfer ban temporarily for 2021/2022
winter transfer season.
2.5 The remaining balance and all the interests are going to be paid by the club on or
before 9th February 2022. The interest will be calculated on the effective payment date.
2.6 In the event of the club failure to comply with any obligation set forth herein the
player will be able to notify FIFA DRC to immediately execute the above-mentioned
decision (Ref. Nr. 18-00989/pam) regarding the registration ban and, as consequence,
all terms herein established will not be considered valid and the remaining amount
shall be paid in full at once.
2.7 The parties hereby accept that this private agreement only includes a payment
plan, and it is not an agreement for a replacement of the decision. Therefore, the
parties hereby confirm the enforcement ability of the DRC decision in front of TFF and
FIFA is still valid. Therefore, the player will only give a temporary transfer permission
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REF. FPSD-8988
(with the condition of compliance article 2.2 and 2.3) for 2021/2022 winter transfer
season in front of FIFA and TFF. The player may impose a transfer ban for other
transfer seasons with the DRC decision.”
5.
On 24 January 2022, the club remitted a payment in the amount of EUR 35,000.
6.
On 6 May 2022, the Claimant was able to cash a cheque over TL 75,000 (resulting from a
cheque handed to the player on 25 January 2022). Said cheque resulted in a payment of
EUR 4,777.
7.
On 30 May 2022, the Claimant was able to cash a cheque over TL 160,000 (resulting from a
cheque handed to the player on 21 January 2022). Said cheque resulted in a payment of
EUR 9,101.
II. Proceedings before FIFA
8.
On 23 January 2023, 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
9.
In his claim, the Claimant requested payment of EUR 373,963 plus 5% interest p.a. as of 9
February 2022.
10. The player argued that the club failed to comply with the payment plan as all residual
amounts should have been paid by 9 February 2022.
11. The player pointed out that the Respondent, after the previous DRC decision, committed
to pay a total amount of EUR 353,629 as well as the interest “as from the due dates”.
12. On account of the above, the player requested the total amount of EUR 373,963 as follows:
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REF. FPSD-8988
13. The player deducted the payment of EUR 35,000 from the first instalments due in the DRC
decision. However, he claims interest for late payment as follows:
14. On account of the above, the Claimant did the following calculation:
EUR 318,629 as residual amount due
+EUR 61,683 as interest for late payments of the initial amounts until 9 February 2022
+EUR 7,529 as interest for late payment of EUR 35,000 (until 24 January 2022)
-EUR 4,777 as payment resulting from a cheque
-EUR 9,101 as payment resulting from a cheque
= EUR 373,963 as claimed amount
15. Moreover, the Claimant maintained that art. 12bis RSTP is applicable- According to the
player, he put the club in default on 9 January 2023.
b. Position of the Respondent
16. In its reply, the club rejected the player’s claim as the claimed amount is “not correct”.
17. In this regard, the Respondent submitted the following payment receipts referring to the
player:
- EUR 25,000 on 24 January 2022 (note: already acknowledged in Claimant’s claim);
- EUR 10,000 on 24 January 2022 (note: already acknowledged in Claimant’s claim);
- TRY 2,000 (approx. EUR 130) on 10 February 2022.
18. Moreover, the club argued that it went through a “bad period” due to the economic
problems in Turkey (currency) as well as the sporting development and the recent
earthquake.
19. For those reasons, the club wished to point out that the delay of payments is not
“malicious”, but beyond its control.
20. On account of the above, the club requests not to be sanctioned with a sporting sanction.
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REF. FPSD-8988
c. Reaction of the Claimant to the alleged payment
21. The Claimant acknowledged receipt of the payment of the Respondent dated 10 February
2022 in the amount of TRY 2,000.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. 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 23 January 2023 and submitted
for decision on 20 April 2023. Taking into account the wording of art. 34 of the March 2023
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.
23. 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 (October 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 player and a club.
24. 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 (October 2022 edition), and
considering that the present claim was lodged on 23 January 2023, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
25. 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).
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REF. FPSD-8988
c. Merits of the dispute
26. 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
27. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties dispute the consequences of a settlement
agreement, after a previous DRC decision.
28. The Chamber noted that according to the player, the club failed to remit the total amount
of EUR 373,963, corresponding to the initial amount that should have been paid by 9
February 2022, as well as interest for late payments.
29. Subsequently, the DRC analysed the arguments of the Respondent, according to which it
could not honour the agreement due to economical developments. However, it argued
having remitted a higher amount than acknowledged by the player.
30. The members of the Chamber noted that it remained undisputed that the Claimant is
entitled to the initial amount along with interest claimed. The wording in the payment plan
regarding the interest awarded in the previous decision is vague, however, in the Chambers
opinion the parties agreed that the player is entitled to the initial amount as well as the
interest.
31. The DRC established that the payment plan is a novation and an acknowledgement by the
club. Therefore, the Chamber concluded that the player is entitled to the interest claimed
until 9 February 2022.
32. As to the alleged payments in excess of the player’s claim, the DRC wished to emphasize
that the payments dated 24 January 2022 (EUR 10,000 and EUR 25,000) were already
acknowledged by the player and deducted from the claimed amount.
33. The other acknowledged payment dated 10 February 2022 (TRY 2,000) shall be deducted.
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REF. FPSD-8988
ii. Consequences
34. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided to award the player the amount of EUR 373,297.
35. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from 10 February 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
36. 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.
37. 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.
38. 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.
39. 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.
40. 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-8988
d. Costs
41. 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.
42. 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.
43. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-8988
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jeffrey Nana Darko Sarpong, is partially accepted.
2.
The Respondent, Elazigspor, must pay to the Claimant the following amount(s):
- EUR 373,297 plus 5% interest p.a. as from 10 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 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-8988
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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