Labour Disputes
Texto da decisão
REF 20-01468
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 December 2020,
regarding an employment-related dispute concerning the player Issiar Dia
COMPOSITION:
Geoff Thompson (England), Chairman
Angela Collins (Australia), member
Abu Nayeem Shohag (Bangladesh), member
CLAIMANT:
ISSIAR DIA, France-Senegal
Represented by Mr. Thomas Normand
RESPONDENT:
YENI MALATYASPOR, Turkey
Represented by Mr. Burak Çakir
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I. FACTS OF THE CASE
1.
On 21 May 2020, the Franco-Senegalese player, Issiar Dia (hereinafter: the player or the Claimant)
and the Turkish club, Yeni Malatyaspor (hereinafter: the club or the Respondent) executed a
termination agreement (hereinafter: termination agreement) according to which they agreed to
terminate a formerly established employment relationship between them.
2.
Pursuant to the termination agreement, the club undertook to pay to the player inter alia EUR
371,250, broken down as follow:
a. EUR 123,750 on 30 June 2020;
b. EUR 123,750 on 25 July 2020;
c. EUR 123,750 on 15 August 2020;
3.
Last paragraph of clause 2 (a) of the termination agreement reads as follows: “If the Club doesn't
pay one of the instalments within the prescribed above mentioned deadlines, for some reason
that it is and without prior formal notice from the Player, the Club is indebted without delay of
the total sum remaining due as principal increased by an interest at 10% (ten percent) per year
from the date of eligibility of the instalment until the date of effective payment and with a
supplementary fix penalty amounting to € 20,000 (i.e. twenty thousand EUR).”
4.
On 1, 7 and 23 July 2020, the player put the club in default of payment referring to the
termination agreement and asked that payments be performed “without delay”.
5.
On 6 July 2020, the club responded to the first notice and informed that payment would be made
in the next week.
II.
PROCEEDINGS BEFORE FIFA
6.
On 15 October 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
The claim of the Claimant
7.
The player lodged the claim at had claiming that the club had overdue payables towards him in
the total amount of EUR 371,250, corresponding to the instalments agreed under the
termination agreement.
8.
The player furthermore required the payment of the penalty and interest under the termination
agreement as well as attorney fees, as follows:
“a) The Claim is well-founded for non-fulfilment of the Mutual Termination and Financial
Clearance;
b) MALATYASPOR must pay in favour of Mr Issiar DIA an amount of € 371.250,00 as
outstanding remuneration regarding the Employment contract;
c) MALATYASPOR must pay to Mr Issiar DIA an amount of € 20.000,00 as fix penalty;
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d) MALATYASPOR must pay to Mr DIA an amount of € 7.945,69 as interest at 10% since 30
June 2020, 25 July 2020 and 15 August 2020 (this amount will be necessary updated until the
day of full payment to Mr Issiar DIA);
e) All amount claimed shall be considered as net”.
b.
Position of the Respondent
9.
In its reply to the claim, the Respondent argued that the player never had a good performance
while at the club, in spite of the fact that the latter always paid on time.
10.
The club went on to state that it reached an agreement to terminate the contract with the
player according to which it “agreed to compensate the player (…) due to the early termination
of contract” by paying EUR 371,250. Accordingly, the club deems that a penalty clause of EUR
20,000 and 10% interest is “disproportionate and therefore not valid” and should be reduced.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
11.
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 15 October 2020 and submitted for decision
on 10 December 2020. Taking into account the wording of art. 21 of the June 2020 edition of
the Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
12.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (edition October 2020), 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 Franco-Senegalese player and a Turkish club.
13.
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 (edition October 2020), and considering that
the present claim was lodged on 15 October 2020, said edition of said regulations (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
b.
14.
Burden of proof
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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 DRC stressed the wording of art. 12
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par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the
parties.
15.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3 of
the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to
the application of the Regulations, any documentation or evidence generated or contained in
TMS.
c.
16.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the DRC
entered into the merits of the dispute. In this respect, the DRC started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However, the
DRC 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
17.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties do not dispute that the club undertook to pay the
player EUR 371,250 as per the termination agreement.
18.
Nonetheless, the DRC noted that the Respondent has objected to the application of 10%
interest as well as the penalty fee.
19.
Turning to the former, the DRC referred to its own jurisprudence and well-established practice
and confirmed that the amount of 10% per annum as interest cannot be considered as excessive
or disproportionate, and decided to uphold the argumentation of the Claimant in this respect.
20.
In continuation, the DRC addressed the issue of the penalty clause of EUR 20,000, which it
found also proportionate and not excessive, as it represented only 5.39% of the principal
amount due. Accordingly, the Chamber also referred to the jurisprudence of the DRC, which
has consistently affirmed that clauses such as the one at stake shall be enforced.
21.
Bearing in mind the foregoing, the DRC considered that the circumstances raised by the
Respondent cannot be considered a valid reason for non-payment of the monies claimed by the
Claimant, in other words, the reasons brought forward by the Respondent in its defence do not
exempt the Respondent from its obligation to fulfil its contractual obligations towards the
Claimant. The DRC furthermore highlighted that both the interest rate and the contractual
penalty were freely negotiated by and between the parties and are fair and proportionate.
22.
Consequently, the DRC decided to reject the argumentation put forward by the Respondent in
its defence.
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23.
On account of the aforementioned considerations, the DRC established that the Respondent
failed to remit the player’s remuneration, in the total amounts of EUR 371,250, corresponding
to the instalments agreed under the termination agreement.
24.
Consequently, the DRC decided that, in accordance with the general legal principle of pacta
sunt servanda, the Respondent is liable to pay to the Claimant the total amount of EUR 371,250
as outstanding remuneration as well as EUR 20,000 as contractual penalty.
25.
In addition, taking into account the Claimant’s request as well as the constant practice of the
Dispute Resolution Chamber, the DRC decided that the Respondent must pay to the Claimant
interest of 10% p.a. on each of the relevant payments as of the day following the day on which
the relevant payments fell due, until the date of effective payment. The DRC clarified however
that in accordance with its own well-established practice, no interest shall accrue on the
contractual penalty.
ii. Compliance with monetary decisions
26.
Finally, taking into account the applicable Regulations, the Chamber referred to par. 1 and 2 of
art. 24bis 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.
27.
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 and for the maximum duration
of three entire and consecutive registration periods.
28.
Therefore, bearing in mind the above, the DRC decided that, in the event that the club does
not pay the amounts due to the player within 45 days as from the moment in which the player
communicates the relevant bank details to the club, provided that the decision is final and
binding, a ban from registering any new players, either nationally or internationally, for the
maximum duration of three entire and consecutive registration periods shall become effective
on the club in accordance with art. 24bis par. 2 and 4 of the Regulations.
29.
The DRC recalled that the above-mentioned bans will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of
the Regulations.
d.
30.
Costs
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance of
contractual stability as well as international employment related disputes between a club and a
player are free of charge”. Accordingly, the Chamber decided that no procedural costs were to
be imposed on the parties.
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31.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18 par. 4
of the Procedural Rules, and decided that no procedural compensation shall be awarded in
these proceedings.
32.
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, ISSIAR DIA, is partially accepted.
2.
The Respondent, YENI MALATYASPOR, has to pay to the Claimant the following amounts:
- EUR 123,750 as outstanding remuneration plus 10% interest p.a. as from 31 June 2020 until
the date of effective payment;
- EUR 123,750 as outstanding remuneration plus 10% interest p.a. as from 26 July 2020 until
the date of effective payment;
- EUR 123,750 as outstanding remuneration plus 10% interest p.a. as from 16 August 2020
until the date of effective payment.
- EUR 20,000 as contractual penalty.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
7. The decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 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
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