DRC Overdue Payables
Texto da decisão
REF. FPSD-15194
Decision of the
Dispute Resolution Chamber
passed on 24 October 2024
regarding an employment-related dispute concerning
the player Abdoulay Diaby
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Mario FLORES CHEMOR (Mexico), Member
Alexandra GOMEZ BRUINEWOUD (Uruguay & the Netherlands), Member
CLAIMANT:
Abdoulay Diaby, France
Represented by Joao Filipe Lobao
RESPONDENT:
Pendikspor Futbol A.Ş., Türkiye
Represented by Ercan Sevdimbaş
pg. 2
REF. FPSD-15194
I. Facts of the case
1.
On 17 July 2023, the French player, Abdoulay Diaby (hereinafter: the Player or the Claimant),
and the Turkish club, Pendikspor Futbol A.Ş. (hereinafter: the Club or the Respondent)
concluded a document titled “Protocol” (hereinafter: the Protocol), with the purpose of
determining the additional conditions of an employment contract that would be signed by
the parties for the 2023/2024 football season.
2.
The relevant provisions in the Protocol were the following (quoted verbatim):
“FOR 2023/2024 FOOTBALL SEASON
• 250.000.-EURO NET will be paid as a down payment.
• 450.000.-EURO NET total will be paid in ten equal instalments between August 2023 May 2024 as 45.000.-EUR for each month. (In addition to the 50.000-Euros salary written
in the TFF Professional football Player Contract. 500.000-Euros will be paid to the Player
by the Club. To put it more clearly, the Player will be paid total net salary of 500.000Euros as a result of 50.000-Euros specified in the TFF Professional Football Player
Contract and 450.000-Euros specified in this protocol. Thus, the Player will receive a
monthly salary of 50.000-Euros for 10 months between August 2023 and May 2024.)
• If the player takes part in the 11 squad-team and plays in 25 official league competitions
(excluding play-offs, cups and other competitions), in 2023/2024 football season, a net
bonus of 100.000-EURO will be paid to the Player.
• Other Provisions
-All payments under this contract are net payments
-The above mentioned down payments will be paid as an advance and will be accepted
as progress payment at the end of the season, provided that the Player give his services
to the Club until the end of the relevant season. If the Contract is terminated without just
cause by the Player or with just cause by the Club, the pro-rata principle will be applied
and the Player will only be entitled to the amount for the period that he rendered service
to the Club
(…)
This Protocol will only be valid in case the Parties signs and register the TFF Professional
Player Contract to the Turkish Football Federation. If the Parties does not sign or register
the TFF Professional Player Contract to the Turkish Football Federation, the payments
made to the Player according to this Protocol will be reimbursed to the Club by the
Player.”
3.
On 18 July 2023, the Player received EUR 250,000 in cash and made the following statement
(quoted verbatim):
“I, ABDOULAY DIABY, received 250.000,-EURO by hand on 18.07.2023 according to my
receivables (salary payment) arising from the Professional Football Player Contract and
Protocol signed with Pendikspor Fútbol A.Ç. This payment was made by hand, not by
bank, at my request. Therefore, I waive my claims that 1 did not receive payment by hand.
pg. 3
REF. FPSD-15194
I accept, declare and undertake that this paid amount of 250.000,-EURO can be deducted
from my arised/ arising receivables or that will be arise. 18.07.2023”
4.
On 19 July 2023, the parties entered into an employment contract (hereinafter: the Contract)
valid as from the date of the signature until 30 June 2024.
5.
In clause 3 of the Contract, the Respondent undertook to pay the Claimant EUR 50,000 net
in ten instalments of EUR 5,000 each, between August 2023 and May 2024.
6.
On 17 October 2023, the Player received EUR 45,000 in cash as his salary for September
2023.
7.
On 19 October 2023, the Club paid the Player EUR 5,000 for his September 2023 salary.
8.
On 9 January 2024, the Player received EUR 90,000 in cash as his salary for October and
November 2023. Additionally, the Club paid the Player EUR 10,000 for his October and
November 2023 salary.
9.
On 28 March 2024, the Club paid the Player EUR 10,000 for his August and December 2023
salary.
10. On 29 March 2024, the Player received EUR 90,000 in cash as his salary for August and
December 2023.
11. On 31 March 2024, the Club made a statement addressed to the Player, which included the
following (quoted verbatim):
“In this context. Siltaş Yapi Pendikspor A.Ş.'s due but unpaid progress payment debt to
you as of 31 March 2024 is Net – 150,000 -EURO (the salaries of October, November,
December, January, February and March salaries) and regardless of your signature on
the aforementioned letter, your receivable in question remains outstanding.”
12. On 24 May 2024, the Player received EUR 45,000 in cash as his salary for January 2024. Also,
the Club paid the Player EUR 5,000.
13. During the 2023/2024 season, the Player participated in 27 matches for the Club: he was
part of the starting line-up in 11 matches and played as a substitute in 16 matches.
14. By correspondence dated 25 June 2024, the Player put the Club in default and requested
payment of EUR 305,000 setting a 10-day time limit in order to remedy the default.
pg. 4
REF. FPSD-15194
II. Proceedings before FIFA
15. On 10 July 2024, the Claimant filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Position of the Claimant
16. According to the Claimant, the Club failed to pay him EUR 305,000 net.
17. In this regard, the Player stated that the Club owed him a balance of EUR 5,000 for January’s
salary, as well as full salaries of EUR 50,000 net each for February, March, April and May.
Additionally, the Player asserted that the Club failed to pay him a bonus of EUR 100,000
net, as he made 28 appearances in official games for the “11-squad team” during the term
of the Contract, 27 of which were in the Turkish Super League.
18. The requests for relief of the Claimant were the following:
“The Player respectfully request to the Dispute Resolution Chamber to recognize that Club
is in debt with him in an amount no less than 305.000,00 (three hundred and five
thousand euros) on the following terms:
a. € 205 000,00 (two hundred and five thousand euros) as salary:
i. Salary of January (€5.000,00 due and unpaid since 31st January 2024),
ii. Salary of February (€50.000,00 due and unpaid since 28st February 2024)
iii. Salary of March (€50.000,00 due and unpaid since 31st March 2024);
iv. Salary of April (€50.000,00 due and unpaid since 30th April 2024);
V. Salary of May (€50.000,00 due and unpaid since 31st May2024)
b. €100.000,00 (one hundred thousand euros) net bonus due and unpaid since 30th June
2024;
II. The Club is ordered to pay the net plus 5% interest over due 305.000,00 (three hundred
and five thousand euros) as of the payment dates defined in I.
III. The Decision shall be executed in accordance with Art. 24 bis FIFA RSTP and also
include a decision about the consequences of the Club failure to pay the amounts
according to request for relief no. I and II.”
b. Position of the Respondent
19. According to the Respondent, the Player was not entitled to the bonus he is claiming, as
the condition stipulated in the clause of the Protocol had not been fulfilled. In this sense,
the Club stated that the parties intended to establish that the Player would be entitled to
the bonus only if he was part of the starting line-up in 25 official matches. Therefore, since
the Player was part of the starting line-up in only 11 matches, he is not entitled to this
bonus.
pg. 5
REF. FPSD-15194
20. Furthermore, the Club asserted that it paid all the amounts owed to the Player. The Club
alleged that it paid EUR 550,000 and provided the payments receipt as evidence.
21. The requests for relief of the Respondent were the following:
“In view of all the documentation as well as the factual and legal considerations
mentioned above,
Pendikspor Fútbol AS shall herein respectfully request the esteemed FIFA Dispute
Resolution Chamber to rule as follows:
1. Rejection of the Plaintiffs claims,
2. The Claimant’s claim for bonus fee is also rejected as the Player is not entitled to receive
bonus fee.”
c. Rejoinder of the Claimant
22. In his rejoinder, the Claimant alleged that he was entitled to receive a total amount of EUR
750,000 net, of which EUR 50,000 corresponded to the Contract (EUR 5,000 per month),
EUR 250,000 corresponded to the down payment stipulated in the protocol, and EUR
450,000 corresponded to the instalments outlined in the Protocol (EUR 45,000 per month).
Since the Club demonstrated that it paid EUR 550,000, it acknowledged a debt of EUR
200,000. Furthermore, the Player argued that he did not receive the amount allegedly paid
on 24 May 2024 to his bank account and provided evidence to support this allegation.
23. In addition, the Player reaffirmed that he played 27 matches in the “11 squad-team” and
that he was not required to play a minimum number of minutes to be entitled to this bonus,
according to the Protocol. Moreover, the Club did not reply to the Player’s notice of default,
which is a clear indication that this amount was owed to him.
d. Final comments of the Respondent
24. In its final comments, the Respondent reaffirmed its previous argument and stated that the
Player was not entitled to the bonus, as the condition had not been fulfilled. Furthermore,
the Club mentioned that it had constantly fulfilled its obligations under the Contract.
pg. 6
REF. FPSD-15194
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
25. First of all, the Dispute Resolution Chamber (hereinafter: the 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 10 July 2024 and submitted for decision on
24 October 2024. 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.
26. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 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 French player and
a Turkish club.
27. 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 (June 2024 edition), and
considering that the present claim was lodged on 10 July 2024, the June 2024 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
28. 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
29. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
pg. 7
REF. FPSD-15194
i. Main legal discussion and considerations
30. The Chamber then moved to the substance of the matter and took note of the fact that this
is a claim of a player against a club for outstanding remuneration.
31. In this respect, the Chamber recalled that, according to the Player, the Club failed to pay
him the balance of the salary for January 2024 and the full salaries for February, March,
April and May 2024, totalling EUR 205,000 net. Additionally, the Club failed to pay him a
bonus stipulated in the Protocol, as he achieved 27 appearances in the Turkish Super
League.
32. Conversely, the Respondent argued that it had fulfilled all its financial obligations toward
the Player and that he was not entitled to the bonus, as the condition for its accrual was
not met. In this regard, the Club stated that, to be entitled to the bonus, the Player had to
be in the starting line-up in 25 matches, but he was only part of the starting squad in 11
matches.
33. In this context, the Chamber acknowledged that its task was to determine (i) whether the
Club failed to pay the Player EUR 205,000 net and (ii) whether the Player was entitled to the
bonus.
34. First, regarding the salaries, the Chamber noted that the Player was entitled to receive EUR
50,000 net under the Contract, which were to be paid in 10 instalments of EUR 5,000 net
each, and EUR 700,000 net under the Protocol, of which EUR 450,000 net were to be paid
in 10 instalments and EUR 250,000 net were to be paid as a down payment. Nonetheless,
the Player argued that the Club only paid him EUR 545,000 net, as it failed to pay EUR 5,000
net for January and four full salaries of EUR 50,000 net each.
35. The Chamber observed that the Club provided evidence demonstrating that it paid EUR
550,000 net and argued that it had fulfilled all the financial obligations towards the Player.
However, the Club did not provide any further explanation to justify that all the payments
had been made or why it had fulfilled all its financial obligations solely with these payments.
In this regard, the Chamber concluded that the Club failed to pay EUR 200,000 net, which
corresponded to the salaries for February, March, April and May 2024.
36. Regarding the EUR 5,000 net that the Player claimed he did not receive, the Chamber
pointed out that the Club provided evidence of having paid this amount to the Player’s bank
account. Additionally, these receipts are consistent with other receipts for payments that
the Player acknowledged having received. Therefore, the Chamber considered that the
Club fulfilled its burden of proving that it complied with this payment. While it is true that
the Player provided evidence attempting to demonstrate that he did not receive this
amount, the Chamber was of the opinion that, based solely on this evidence, it is not
possible to establish that the provided bank statements belong to the Player’s bank
account or at least to the account where he received the payments.
pg. 8
REF. FPSD-15194
37. Based on the abovementioned, the Chamber decided to award the Player EUR 200,000 net
as outstanding remuneration, with 5% interest p.a. starting from the date after each due
date of the unpaid salaries. As both the Contract and Protocol were silent about the due
dates, according to the well-established jurisprudence of the Football Tribunal, the
Chamber stated that they should have been paid by the end of each respective month.
38. Furthermore, the Chamber noted that the parties strongly dispute whether or not the
Player was entitled to the bonus. In this regard, the Player stated that the condition was
fulfilled, as the Protocol established that he had to play 25 official matches for the Club,
without requiring a minimum number of minutes to be played. Conversely, the Club argued
that the Player had to be part of the starting line-up in 25 matches to be entitled to this
bonus.
39. In this respect, the Chamber recalled that the relevant clause stipulated the following:
“If the player takes part in the 11 squad-team and plays in 25 official league competitions
(excluding play-offs, cups and other competitions), in 2023/2024 football season, a net
bonus of 100.000-EURO will be paid to the Player.”
40. The Chamber, by majority, first highlighted that the clause was poorly drafted, as it did not
specify what “takes part in the 11 squad-team” meant.
41. Notwithstanding the above, the Chamber, by majority, pointed out that the intention of the
parties was to establish that the Player had to be part of the starting eleven on 25 occasions
to be entitled to the bonus. In this sense, the Chamber, by majority, considered that if the
condition had only been to play in 25 matches, the parties would not have included the
term “11 squad-team”, as it is evident that playing involves being part of a squad of 11
players. Furthermore, the majority of the Chamber remarked that the clause included two
conditions: taking part in the “11 squad-team” and playing. Therefore, in the majority of the
Chamber’s opinion, the parties included this term because they intended to refer
specifically to the starting line-up.
42. In light of the above, the Chamber, by majority, decided that the Player is not entitled to
the bonus, as he was part of the starting line-up on 11 occasions and not on 25.
ii. Art. 12bis of the Regulations
43. In continuation, 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.
pg. 9
REF. FPSD-15194
44. To this end, the Chamber confirmed that the Player put the club in default of payment of
the amounts sought and granted the club a 10-day deadline to cure such breach of
contract.
45. Accordingly, the Chamber confirmed that the Club had delayed a due payment without a
prima facie contractual basis for more than 30 days. It followed that the criteria enshrined
in art. 12bis of the Regulations was met in the case at hand.
46. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Club. On account of the above and bearing in mind
that the Club had previous sanctions, the Chamber decided to impose a reprimand on the
Club in accordance with art. 12bis par. 4 lit. b) of the Regulations.
47. In this connection, the Chamber highlighted 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
48. 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.
49. 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.
50. 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.
51. 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.
pg. 10
REF. FPSD-15194
52. 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
53. 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.
54. 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.
55. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 11
REF. FPSD-15194
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Abdoulay Diaby, is partially accepted.
2.
The Respondent, Pendikspor Futbol A.Ş., must pay to the Claimant the following amount:
- EUR 200,000 net as outstanding remuneration plus 5% interest p.a. as follows:
- 5% interest p.a. over the amount EUR 50,000 net of as from 1 March 2024 until the date
of effective payment;
- 5% interest p.a. over the amount EUR 50,000 net of as from 1 April 2024 until the date of
effective payment;
- 5% interest p.a. over the amount EUR 50,000 net of as from 1 May 2024 until the date of
effective payment;
- 5% interest p.a. over the amount EUR 50,000 net of as from 1 June 2024 until the date of
effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A reprimand is imposed on the Respondent.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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.
7.
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.
pg. 12
REF. FPSD-15194
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 13
REF. FPSD-15194
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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396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 14