Dispute Resolution Chamber
Texto da decisão
REF 20-01639
Decision of the
Dispute Resolution Chamber
passed on 28 April 2021
regarding an employment-related dispute concerning the player Abdoulay Diaby
COMPOSITION:
Omar Ongaro (England), Deputy Chairman
Roy Vermeer (Netherlands), member
Pavel Pivovarov (Russia), member
CLAIMANT:
Abdoulay Diaby, Mali
RESPONDENT:
Besiktas Futbol, Turkey
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REF 20-01639
I. Facts
1. On 2 September 2019, the parties concluded an employment contract for the season 2019/2020.
2. Following clause 6 of the contract, the player was entitled to EUR 1,750,000 net, payable as
follows:
“For season 2019/2020 Football Season: 1.750.000 – EURO (one million and seven hundred and
fifty thousand Euros)” in the following terms:
€175.000,00 (...) on the 5th September 2019;
€175.000,00 (...) on the 30th September 2019;
€175.000,00 (...) on the 31st October 2019;
€175.000,00 (...) on the 30th November 2019;
€175.000,00 (...) on the 31st December 2019;
€175.000,00 (...) on the 31st January 2020;
€175.000,00 (...) on the 28th February 2020;
€175.000,00 (...) on the 31st March 2020;
€175.000,00 (...) on the 30th April 2020;
€175.000,00 (...) on the 31st May 2020;
3. Clause 6 c) of the contract stipulated the following:
“The Club shall pay the Player a net amount of 3.000,00 EUR for rent per month during the
term of the Agreement”
4. The contract further stipulated the following:
“Flight Tickets: Per season, the Club shall grant and pay in total 2 business-class return trips from
Istanbul to Mali and back for the Player. The flight tickets must be requested by the Player at
least 30 days before the date of each flight.”
5. On 19 March 2020, the Turkish Football Federation (“TFF”) declared all national leagues and
cup competitions as suspended until further notice as a result of the Covid-19 pandemic.
6. On 30 June 2020, the club sent a draft settlement to the player indicating the following:
“4. The Player explicitly and irrevocably agrees and accepts that, out of his total entitlement of
525.500 EUR as guaranteed salary for the months March, April and May 2020, he waives his
entitlement to 262.500 EUR which corresponds to half of his remuneration arising from the
employment agreement stipulated in Whereas.1 for the months March, April and May 2020.
Furthermore, the Player explicitly agrees and accepts that the remaining part of 262.500 EUR
for the months March, April and May 2020 will be paid by the Club to the Player on 31 October
2020. 5. The Player agrees and accepts that the ending date of the Employment Agreement
stipulated in Whereas.1 is extended until the last official match which will be played in TFF
2019/2020 Super League as will be announced by the TFF and he will continue to provide his
services to the Club until the new ending date of the 2019/2020 season announced by the TFF”
7. On 2 July 2020, the legal representative of the claimant rejected the offer.
8. On 15 September 2020, the club sent a correspondence to the player indicating the following:
“Collective and individual meetings were conducted between Mr. Diaby, other players,
technical staff, employees and our Club's President and board members to mitigate the
damages caused by the Covid-19 pandemic and to enable our Club to continue its activities.
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REF 20-01639
During these meetings, a proposal was made to Mr. Diaby to amend the monetary
obligations of the employment contract in accordance with half of the financial damages
suffered by our Club due to Covid-19 pandemic and an amicable solution was sought.
However, a positive outcome was not reached.
“Considering that Mr. Diaby's total salary for the 2019/2020 season according to the
Employment Contract he signed with our Club was 1.750.000 EUR, %15 of this amount which
equals to 262.500 EUR was deducted from Mr. Diaby's salaries from our Club for the months of
March, April and May 2020.
This mitigation of the remuneration, which is mandatory for our Club to continue its activities,
is applied equally to all members of our Club and importance was given to make sure that each
player and technical staff faces minimum damages, where the total damage suffered by our
Club due to Covid-19 is distributed equally between our Club and members of our team.”
9. On 28 October 2020, the player sent a default notice to the club imdicating the following:
(…) it remains unpaid part of the salary of 30 April and 31 May 2020 in an total amount of €
235.599,00 (two hundred and fifty five thousand and five hundred and ninety nine EURO).
Moreover, BESIKTAS – and considering all the amount paid has being salary payment – owes to
the Player the net house benefit on a total amount of €33.000,00 (thirty-three thousand EURO).
(…)
If the Club fails to perform the above-mentioned payment within the next ten days and
therefore, until 9th November 2020 we will be forced to lodge the necessary complain in front
of FIFA Dispute Resolution Chamber.”
10. On 5 November 2020, UEFA sent a correspondence to the club sent a correspondence to the
club corresponding to the distribution of the Europa League income, stating that “the overall
loss of revenues due to Covid-19 equalled €520m, which corresponds to a club share of €83,3m
per season, split over both club competitions proportionally to the amounts available for
distribution”
11. On 10 November 2020, the player lodged a claim for outstanding remuneration and requesting
the payment of debt of EUR 268,599 net plus 5% interest thereof as of the salary payment dates
defined in the contract. Order the Player to pay the legal fees and lawyer fees in an amount no
less than 10% of the amount in debt;
12. In addition, the player requested to “to order the player [sic] to pay the legal fees and lawyer
fees in an amount no less than 10% of the amount in debt”
13. In its reply to the claim, the Respondent rejected the position of the player.
14. In this respect, the Respondent stated that he paid the player as follows:
2019-2020 SEASON
EXPLANATION
31.08.2019
30.09.2019
30.09.2019
25.10.2019
31.10.2019
31.10.2019
AUGUST SALARY
SEPTEMBER SALARY
SEPTEMBER LOAN
PAYMENT
OCTOBER SALARY
OCTOBER LOAN
AMOUNT
BALANCE
175.000
175.000
2.900
-352.900
175.000
3.000
175.000
350.000
352.900
0
175.000
178.000
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REF 20-01639
30.11.2019
30.11.2019
5.12.2019
19.12.2019
31.12.2019
31.12.2019
30.01.2020
30.01.2020
31.01.2020
31.01.2020
29.02.2020
29.02.2020
31.03.2020
31.03.2020
17.04.2020
30.04.2020
30.04.2020
7.05.2020
31.05.2020
31.05.2020
31.05.2020
8.06.2020
31.05.2020
30.07.2020
30.07.2020
1.10.2020
NOVEMBER SALARY
175.000
NOVEMBER LOAN
3.000
PAYMENT
-87.500
PAYMENT
-43.750
DECEMBER SALARY
175.000
DECEMBER LOAN
3.000
PAYMENT
-43.750
PAYMENT
-43.750
JANUARY SALARY
175.000
JANUARY LOAN
3.000
FEBRUARY SALARY
175.000
FEBRUARY LOAN
3.000
MARCH SALARY
175.000
MARCH LOAN
3.000
PAYMENT
-200.000
APRIL SALARY
175.000
APRIL LOAN
3.000
BİZBİZE CAMPAIGN
-10.000
MAY SALARY
175.000
MAY LOAN
3.000
FLİGHT COST
-1.474
PAYMENT
-165.000
%15 COVID DISCOUNT -262.500
PAYMENT
-38.527
PAYMENT
-262.500
PAYMENT
-265.250
353.000
356.000
268.500
224.750
399.750
402.750
359.000
315.250
490.250
493.250
668.250
671.250
846.250
849.250
649.250
824.250
827.250
817.250
992.250
995.250
993.776
828.776
566.276
527.750
265.250
-0
15. In relation to said payment, the club explained that the sum of EUR 10.000 and EUR 1.474 were
deducted from the Claimant’s salaries as contribution to the Fund raising campaign of the
Turkish Government (Biz Bize campaign) due to Covid-19 pandemic and as flight expense
incurred by the Respondent on behalf of the Claimant. The club explained that this deduction
was accepted by the player (note: documentation on file).
16. Furthermore, the club stated the sum of EUR 1.474 (equivalent to TRY 10,107) was deducted
from Claimant’s salary as additional flight expenses which were incurred by the Respondent on
behalf of the Claimant.
17. The club further stated that the sum of EUR 262.500 was deducted from the Claimant’s salary
reflecting the half of damages and loss of income suffered by the Respondent due to Covid- 19
pandemic.
18. In this respect, the club explained that, following the guidelines published by FIFA and Turkish
Football Federation during the Covid-19 pandemic and the assessment of the Respondent of
the losses and damages suffered by the Club due to Covid-19 pandemic, it was established that
the total loss of the Respondent due to Covid-19 was estimated to be equal to %30 (thirty
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REF 20-01639
percent) of the originally anticipated income for the 2019/2020 season had Covid-19 pandemic
not taken place.
19. The club stated that a proposal was made to all players and technical staff to mitigate 15% of
the total remuneration for each member during the 2019/2020 season, equally distributing the
total damages and loss of income suffered by the Respondent due to Covid-19 pandemic.
20. Thus, the club explained that, considering that the Claimant’s total salary for the 2019/2020
season according to the Employment Contract signed between the Parties was 1.750.000 EUR,
%15 of this amount which equals to EUR 262.500 was proposed to be deducted from the
Claimant’s salaries for the months of March, April and May 2020. The club explained that the
player rejected this offer.
21. In his replica, the player considered that the club’s deductions are of an arbitrary nature and
were made without his consent. The player debated on “Ultimately, why 15%? Or why 10%?
Maxime, why not 90%?”
22. As to the flight tickets, the player explained that he had the right to a total of 2 (two) business
class return trips from Istanbul to Mail and back, however, the Club never paid such trips. The
player stated that the club only paid for the journey Istanbul – Charles de Gaulle (CDG), Paris.
23. In view of the above, the player insisted in his initial claim.
II. Considerations of the Dispute Resolution Chamber
1.
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.
Taking into account the wording of art. 21 of the January 2021 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.
2.
Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural
Rules and emphasised 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, the Dispute Resolution
Chamber is competent to deal with matters which concern employment-related disputes
with an international dimension between players and clubs, such as the present one.
3.
In continuation, the Dispute Resolution Chamber analysed which edition of the Regulations
of the Status and Transfer of Players should be applicable to the present matter. In this
respect, the Dispute Resolution Chamber confirmed that in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players, and considering the date
when the claim was lodged, the June 2020 edition of the aforementioned regulations
(hereinafter: the Regulations) is applicable to the matter at hand.
4.
With the above having been established, the Dispute Resolution Chamber entered into the
substance of the matter. In doing so, it started to acknowledge the facts of the case as well
as the documents contained in the file. However, the Dispute Resolution Chamber
emphasized that in the following considerations it will refer only to facts, arguments and
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REF 20-01639
documentary evidence which it considered pertinent for the assessment of the matter at
hand.
5.
Subsequently, the Chamber noted that the parties concluded on 2 September 2019, the
parties concluded an employment contract for the season 2019/2020 with the remuneration
that is quoted in point I. 2 above.
6.
Thereafter, the Chamber observed that, after having put the club in default, the player
lodged a claim against the club for outstanding remuneration and requesting the payment
of debt of EUR 268,599 net, apparently corresponding to the months of March (partial) and
April 2020 (full).
7.
On the other hand, the Chamber noted that the Respondent alleged that it paid the player
in full and that, in particular, the sum of EUR 262,500 was deducted from the Claimant’s
salary reflecting the half of damages and loss of income suffered by the Respondent due to
COVID- 19 pandemic. The Chamber noted that the Respondent also argued that the sum of
EUR 10.000 and EUR 1.474 were deducted from the Claimant’s salaries as contribution to the
Fund raising campaign of the Turkish Government (Biz Bize campaign) due to Covid-19
pandemic and as flight expense incurred by the Respondent on behalf of the Claimant.
8.
In view of the dissent between the parties, the Chamber understood that the main legal
issue at stake is to determine whether the Respondent was entitled to perform the
aforementioned deductions.
9.
Having said that, the Chamber wished to refer to the fact that, in light of the worldwide
COVID-19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at
providing appropriate guidance and recommendations to member associations and their
stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and
ensure that any response is harmonised in the common interest. Moreover, on 11 June 2020,
FIFA has issued an additional document, referred to as FIFA COVID-19 FAQ, which provides
clarification about the most relevant questions in connection with the regulatory
consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.
10. Analysing the concept of a situation of force majeure, the members of the Chamber noted
that, based on the contents of the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ,
FIFA did not declare that the COVID-19 outbreak was by itself a force majeure situation in
any specific country or territory, or that any specific employment or transfer agreement was
impacted by the concept of force majeure.
11. In other words, in any given dispute, it is for a party invoking force majeure to establish the
existence of said event under the applicable law/rules as well as the consequences that
derive in connection thereto. The analysis of whether a situation of force majeure existed
has to be considered on a case by-case basis, taking into account all the relevant
circumstances.
12. In this respect, the Chamber noted that, following unilateral decisions to vary agreements
will only be recognised where they are made in accordance with national law or are
permissible within CBA structures or another collective agreement mechanism.
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REF 20-01639
13. On this note, however, the Chamber noted that the Respondent failed to refer to national
law. As a result, the Respondent did not comply with one of the basis elements in order to
accept the contested contractual variation.
14. In addition, the Chamber noted that the Respondent presented its offer for reduction in
June 2020 only, whereas they would be applied over the salaries due between March, April
and May 2020. Hence, the Chamber considered that the Respondent’s offer was made as a
retroactive measure. Moreover, the Chamber noted that the Respondent requested a
reduction that was not only limited to the period of the league’s suspension.
15. In view of the above, the Chamber considered that the unilateral variation due to COVID19 cannot be considered as a valid one, insofar it cannot be seen as reasonable and done in
good faith in the light of the requirements outlined in the document COVID-19 Football
Regulatory Issues. In view of the above, the Chamber considered that the player shall be
remunerated as contractually foreseen.
16. Therefore, given the fact that the Respondent did not sufficiently justify that it performed
any of the outstanding amounts that were requested by the Claimant, the Chamber
understood that, in principle and considering that the player is entitled to his remuneration
as contractually stipulated, that he would be entitled the claimed amount of EUR 268,599,
corresponding to part of his remuneration of March 2020 and his entire salary of April 2020.
17. However, in relation to the Claimed flight tickets, the Dispute Resolution
Chamber reminded the parties of the contents of art. 12 par. 3 of the Procedural Rules,
according to which “any party claiming a right on the basis of an alleged fact shall carry
the burden of proof”. Within this context, the Chamber noted that the player failed to meet
its standard of proof with any sufficient evidence (such as a receipt), whereas the club
sufficiently substantiated the fact that it incurred in the cost of EUR 1,474 for said tickets.
Therefore, the Chamber decided to deduct said amount from the outstanding
remuneration, leading to a total outstanding remuneration of EUR 267,125.
18. Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the Dispute Resolution Chamber decided to award 5% interest
p.a. over said amount as from the due dates, i.e. 5% interest over the amount of EUR 92 125
as from 1 May 2020 and 5% interest over the amount of EUR 175 000 as from 1 June 2020.
19. Furthermore, taking into account the previous considerations, the Dispute Resolution
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.
20. In this regard, the Dispute Resolution Chamber pointed out 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.
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REF 20-01639
21. Therefore, bearing in mind the above, the Dispute Resolution Chamber decided that, in the
event that the Respondent does not pay the amounts due to the Claimant within 45 days as
from the moment in which the Claimant, following the notification of the present decision,
communicates the relevant bank details to the Respondent, 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 Respondent in accordance
with art. 24bis par. 2 and 4 of the Regulations.
22. Finally, the Dispute Resolution Chamber 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. 3 of the Regulations.
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REF 20-01639
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Abdoulay Diaby, is partially accepted.
2.
The Respondent, Besiktas Futbol, has to pay to the Claimant, the outstanding amount of
EUR 267,125 net, plus interest as follows:
-
5% interest over the amount of EUR 92 125 as from 1 May 2020 until the date of effective payment;
-
5% interest over the amount of EUR 175 000 as from 1 June 2020 until the date of effective payment;
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.
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:
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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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