DRC Overdue Payables
Texto da decisão
REF FPSD-3419
Decision of the
Dispute Resolution Chamber
passed on 13 October 2021
regarding an employment-related dispute concerning the player Brahim
Darri
BY:
Mario Flores Chemor (Mexico)
CLAIMANT:
Brahim Darri, The Netherlands
Represented by Maciej Bałaziński
RESPONDENT:
Buyuksehir Belediye Erzurumspor, Turkey
Page 2
REF FPSD-3419
I.
Facts of the case
1.
On 8 January 2021, the Dutch player Brahim Darri (hereinafter: the Claimant) and the Turkish
club Buyuksehir Belediye Erzurumspor (hereinafter: the Respondent) concluded a professional
player contract valid originally until 31 May 2021, with an option to extend its duration for
the 2021/2022 football season (hereinafter: "the Contract").
2.
On 28 April 2021, the Parties mutually agreed to terminate the Contract and signed the
Mutual Termination, Release and Waiver Agreement (hereinafter: "the Termination
Agreement").
3.
According to arts. 1 and 2 of the Termination Agreement, the Parties agreed that the
Respondent shall pay to the Claimant the following amounts:
a. EUR 25,000 due and payable on or before 29 April 2021,
b. EUR 15,000 due and payable on or before 31 May 2021
4.
On 29 April 2021, the Parties signed a settlement agreement (hereinafter: "the Settlement
Agreement").
5.
According to arts. 2 and 3 of the Settlement Agreement, the Parties agreed on a
compensation fee of EUR 100,000, payable by the Respondent to the Claimant as follows:
a. EUR 50,000 due and payable on 30 June 2021,
b. EUR 50,000 due and payable on 31 July 2021.
6.
Art. 4 of the Settlement Agreement reads as follows:
“Penalty Clause: Should BB Erzurumspor fall to comply with any of the payments stipulated
under article 3 / point a-b) above, the Player shall put the Club in default of the payment of
overdue amount by granting 3 business days by submitting a default letter toe - mall address
[email protected]. In case BB Erzurumspor does not proceed to pay the overdue
amount at the end of aforementioned time-frame I.e. 3 business days of grace period, an
additional fine in the amount of NET 5.000-EUR shall accrue without any further notification
to be Issued and BB Erzurumspor shall remunerate the Player with a fine in the amount of
NET 5.000-EUR. The Club acknowledges and considers as proportional, reasonable, fair and
Just the penalty referred above. Moreover, the Club affirms that such payments cannot be
mitigated and/or reduced in any way, since that the Parties, when agreeing to their terms,
have took in consideration the possible scenarios of failure or delay of payment, in order that
the Club be able to be consistent with the payments agreed herein.”
Page 3
REF FPSD-3419
7.
On 26 May 2021 the Claimant sent a request for payment, granting the Respondent an
additional time limit of 10 days to comply, to no avail.
8.
On 2 July 2021, the Claimant sent a notice to the Respondent granting additional 3 days to
comply, to no avail.
II. Proceedings before FIFA
9.
On 26 August 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
10. According to the Claimant, the Respondent did not execute any payment related to the
Termination Agreement or the Settlement Agreement.
11. The Claimant submits that “after the first instalment of compensation under the Settlement
Agreement became due, the Claimant issued a request for payment of the overdue amount
together with the contractual penalty as per Art. 4 of the Settlement Agreement. The
Claimant granted the Respondent an additional time limit of 3 business days to pay the
outstanding amount, thus fulfilling the condition for the application of the contractual
penalty”.
12. The Claimant submitted the following requests for relief:
“1. order the Respondent to pay to the Claimant the outstanding remuneration in the amount
of EUR 145.000 plus 5% interest p.a. as follows:
a. EUR 25.000,00 as outstanding remuneration plus 5% interest p.a. as of 30 April 2021 until
the date of effective payment,
b. EUR 15.000,00 as outstanding remuneration plus 5% interest p.a. as of 1 June 2021 until
the date of effective payment,
c. EUR 50.000,00 as contractual compensation fee plus 5% interest p.a. as of 1 July 2021
until the date of effective payment,
d. EUR 50.000,00 as contractual compensation fee plus 5% interest p.a. as of 3 August 2021
until the date of effective payment,
e. EUR 5.000,00 as contractual penalty for late payment plus 5% interest p.a. as of 13 July
2021 until the date of effective payment;
2. impose on the Respondent a fine and a ban for registering any new players, either
nationally or internationally, for 2 (two) consecutive registration periods, or any other sanction
under Art. 12bis sec. 4 of FIFA RSTP that FIFA DRC deems appropriate.”
b. Position of the Respondent
Page 4
REF FPSD-3419
13. The Respondent replied to the claim on the following terms.
14. The Respondent states that it was relegated to a lower league at the end of 2020/2021 season
and this “automatically affected its broadcasting income”.
15. The Respondent further submits that “lack of matchday income and the currency fluctuation
in Turkish economy made impossible for us to fulfil our liabilities”.
16. The Respondent filed the following requests for relief:
“1. to grant time to the Club in order to begin negotiations over an amicable solution,
2. not to order any amount of penalty and/ or compensation and/ or damage regarding the
unpaid amount,
3. not to punish the Club in violation of Article 12 bis”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as the Single Judge) analysed whether he was competent to deal with the case at hand. In
this respect, he took note that the present matter was presented to FIFA on 26 August 2021
and submitted for decision on 13 October 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.
18. Subsequently, the Single Judge 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 Dutch player and a Turkish club.
19. Subsequently, the Single Judge 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 26 August 2021, the August 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
Page 5
REF FPSD-3419
b. Burden of proof
20. The Single Judge 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 Single Judge stressed the
wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
21. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge 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
22. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the claim remains essentially uncontested as the
Respondent has confirmed it has not paid the amounts claimed and provided explanations
for the non-payment.
23. In this context, the Single Judge acknowledged that his task was to determine whether the
Claimant was indeed entitled the amounts claimed.
24. The Single Judge observed that in accordance with the Settlement Agreement and the
Termination Agreement, the Respondent was obliged to pay the Claimant the total amount
of EUR 140,000 in several instalments.
25. Furthermore, the Single Judge noted that at the time of the claim the Respondent had not
paid any of the instalments owed to the Claimant as per the terms of the Settlement
Agreement and the Termination Agreement.
26. Furthermore, the Single Judge could observe that the Claimant put the Respondent in default
for the due amount, granting a deadline of 10 days to comply.
27. On account of the aforementioned, the Single Judge established that the Respondent,
without any valid reason, breached the terms of the Settlement Agreement and the
Termination Agreement and failed to remit to the Claimant the total amount of EUR 140,000.
Page 6
REF FPSD-3419
28. The Single Judge determined that in accordance with the general legal principle of pacta sunt
servanda, the Respondent was to pay the amount of EUR 140,000 as outstanding amount to
the Claimant.
29. Furthermore, taking into consideration the Claimant’s request as well as the constant practice
of the Football Tribunal in this regard, the Single Judge decided to award the Claimant interest
on said compensation at the rate of 5% p.a. as of the date each instalment fell due until the
date of effective payment.
30. The above having been established, the Single Judge moved to the matter of the contractual
penalty requested by the Claimant. In this regard, the Single Judge analysed the terms of art.
4 of the Settlement Agreement.
31. In this regard, the Single Judge observed that the contractual penalty is for an amount less
than 5% of the overall debt, thus it was found not to be disproportionate. Moreover, the
Single Judge observed that the Claimant had complied with the requirements agreed by the
parties for the application of the said penalty. Hence, the Single Judge confirmed that the
contractual penalty of EUR 5,000 is applicable and shall be imposed on the Respondent.
ii. Consequences under art. 12bis of the Regulations
32. Lastly, the Single Judge 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, he confirmed
that the requisites for the application of the consequences of article 12bis of the Regulations
had been duly met. To this end, the Single Judge 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.
33. Consequently, the Single Judge 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).
34. On account of the aforementioned considerations, and bearing in mind that that the
Respondent failed to pay the amount due to the Claimant, the Single Judge established that
the Respondent had delayed a due payment for more than 30 days without a prima facie
contractual basis.
35. The Single Judge established that in virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent. Therefore, and considering that the
Respondent has committed several breaches of the cited provision in the last 2 years, the
Single Judge decided to impose a fine on the Respondent in accordance with art. 12bis par.
Page 7
REF FPSD-3419
4 lit. a) of the Regulations. The Single Judge found that a fine of USD 22,500 shall be deemed
fair and proportionate, based on to the circumstances of the case.
36. In this respect, the Single Judge wished to highlight that a repeated offence will be considered
as an aggravating circumstance and lead to a more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
37. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24bis
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 Single Judge 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 Single Judge 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. 24bis 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 Single Judge 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
42. The Single Judge 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 Single Judge decided that no procedural costs were
to be imposed on the parties.
Page 8
REF FPSD-3419
43. Likewise, and for the sake of completeness, the Single Judge 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 Single Judge concluded his deliberations by rejecting any other requests for relief
made by any of the parties.
Page 9
REF FPSD-3419
IV. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Brahim Darri, is accepted.
2. The Respondent, Buyuksehir Belediye Erzurumspor, has to pay to the Claimant, the following
amount:
- EUR 140,000 as outstanding amount plus 5% interest p.a. as follows:
o
o
o
o
-
On EUR 25,000 as from 30 April 2021 until the date of effective payment.
On EUR 15,000 as from 1 June 2021 until the date of effective payment.
On EUR 50,000 as from 1 July 2021 until the date of effective payment.
On EUR 50,000 as from 1 August 2021 until the date of effective payment.
EUR 5,000 as contractual penalty.
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 (August 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 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. The decision is rendered without costs.
8. The Respondent is ordered to pay a fine in the amount of USD 22,500. The fine is to be paid
within 30 days of notification of the present decision to FIFA (see note with bank details
below) with reference to case nr. FPSD-3419.
Page 10
REF FPSD-3419
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 11
REF FPSD-3419
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
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 12