DRC Overdue Payables
Texto da decisão
REF FPSD-4439
Decision of the
Dispute Resolution Chamber
passed on 9 June 2022
regarding an employment-related dispute concerning the player Mamadou Diarra
COMPOSITION:
Frans de Weger (Netherlands), Chairperson
Michele Colucci (Italy), member
Iñigo Riestra (Mexico), member
CLAIMANT:
Mamadou Diarra, Senegal
Represented by Koray Akalp, Didiam Sunna
RESPONDENT:
Giresunspor, Turkey
Represented by Atahan Sevimli
Page 2
REF FPSD-4439
I.
Facts of the case
1.
On 4 September 2019, the Senegalese player, Mamadou Diarra (hereinafter: the Claimant), and the
Turkish club, Giresunspor (hereinafter: the Respondent) concluded an employment contract
(hereinafter: the contract) valid from 4 September 2019 until 31 May 2021.
2.
Article 4.1 of the contract states:
‘’This Contract enters into force on signature date and be effective during the football season of
2020/2021 until 31st of May 2021 or any later date on which an official match is played in the respective
football season. But in case the Club promotes to TFF Super League at the end of the football season of
2020/2021, this Contract shall be automatically prolonged and be valid for the football season of
2021/2022 until 31st May 2022 or any later date on which an official match is played in the respective
football season.’’
3.
Art. 6 of the contract, inter alia, stipulates that:
“The club also agrees and accepts to pay the income tax of the Player arising from the remuneration in
this agreement on behalf of the Player to the relevant tax authorities”
4.
Pursuant to art. 6.1. of the contract, the Claimant was entitled to, a total salary of EUR 200,000 net,
as follows:
(a)
For the season 2020/2021
-
EUR 30,000 on 28 August 2020
-
EUR 10,000 on 28 September 2020
-
EUR 16,000 on 30 September 2020
-
EUR 16,000 on 31 October 2020
-
EUR 16,000 on 30 November 2020
-
EUR 16,000 on 31 December 2020
-
EUR 16,000 on 31 January 2021
-
EUR 16,000 on 28 February 2021
-
EUR 16,000 on 31 March. 2021
-
EUR 16,000 on 30 April 2021
-
EUR 16,000 on 31 May 2021
-
EUR 16,000 on 31 June 2021
(b)
For the season 2021/2022
-
EUR 50,000 on 15 August 2021
-
EUR 30,000 on 30 August 2021
-
EUR 30,000 on 30 September 2021
-
EUR 30,000 on 31 October 2021
Page 3
REF FPSD-4439
5.
-
EUR 30,000 on 30 November 2021
-
EUR 30,000 on 31 December 2021
-
EUR 30,000 on 31 January 2022
-
EUR 30,000 on 28 February 2022
-
EUR 30,000 on 31 March 2022
-
EUR 30,000 on 30 April 2022
-
EUR 30,000 on 31 May 2022
Additionally, art. 6.1. of the contract mentioned, inter alia, the following:
“If the Club promotes to the Super League at the end of the 2020/2021 football season, the Claimant will
be entitled to receive 100.000 EUR net bonus payment within 30 days following the last official match of
the Respondent in 2020/2021 football season.’’
The Player will be entitled to a premium of 1.000, -EUR in case of winning that will be effective in official
league matches and in case the Player's attendance in the match squad of the relevant official league
match of the Club (In case two said conditions occur together). The winning premium will be paid in total
at the end of the official league matches of the relevant season.
If the club promotes to The Super League at the end of the 2020/2021 football season, the contract will
be extended automatically for 1 (one) more year as it is stated in Article 4.1 of this contract.’’
6.
The Respondent was promoted to the Super League at the end of the 2020/2021 football season.
7.
The last official match of the Respondent during the 2020/2021 football season was played on 9
May 2021 against Tuzla Spor, “therefore the bonus of 100.000 EUR net became due and payable to the
Claimant on 8 June 2021.”
8.
Furthermore, the Claimant participated in 19 winning matches in the 2020/2021 season hence
entitling him to the receive by 10 May 2021 the total amount of EUR 19,000 as a match bonus as
per art. 6.1. of the contract.
9.
Additionally, the Claimant mentioned that the Respondent, has failed to make payment of his
outstanding remuneration in the total amount of EUR 267,000 net, corresponding to the following:
-
EUR 6,000 net remaining salary due on 30 April 2021
-
EUR 16,000 net salary due on 31 May 2021
-
EUR 16,000 net salary due on 30 June 2021
-
EUR 19,000 net winning premiums for the 2020/2021 season with the due on 10 May 2021
-
EUR 100,000 net bonus due on 8 June 2021 for promotion to Super League
-
EUR 50,000 net salary due on 15 August 2021
-
EUR 30,000 net salary due on 30 August 2021
-
EUR 30,000 net salary due on 30 September 2021
Page 4
REF FPSD-4439
10. Moreover, the Claimant declared his income for the year of 2020 to the tax office in Turkey and
based on this declaration, a total amount of TRY 308.608,79 is tax payable to the tax authorities,
which detail together with supporting documentation was provided to the Respondent “on 1 April
2021 via facsimile, requesting this amount to be paid to the Claimant, for the latter to pay to the tax
authorities.”
11. On 7 October 2021, the Claimant sent a default the letter to the Respondent, granting it a deadline
of 10 days to pay the amount of EUR 267,000 net and TRY 308,608.79, relating to his outstanding
remuneration and unpaid taxes, however to no avail.
12. On 9 November 2021, the Respondent made a partial payment to the Claimant in the amount of
EUR 40,000.
13. Furthermore, in the meantime, the October 2021 salary in the amount of EUR 30,000 net and the
November 2021 salary in the amount of EUR 30,000 net also became due and payable.
II. Proceedings before FIFA
14. On 1 December 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
15. According to the Claimant the term of contract was extended until 31 May 2022 in accordance with
art. 4.1 and art. 6.1 of the contract as a result of the Respondent being promoted to the TFF Super
League at the end of the 2020/2021 football.
16. The Claimant argued that the Respondent failed to comply with its contractual financial
obligations, moreover it failed to comply with his notice of default sent on 7 October 2021.
17. The requests for relief of the Claimant, were that the Respondent pay him the amount EUR 287,000
net and TRY 308,608.79, relating to his outstanding remuneration and unpaid taxes, plus 5%
interest per annum from the respective due dates until the date of effective payment, as follows:
-
EUR 17,000 net as winning premiums for the 2020/2021 season
-
EUR 100,000 net bonus for promotion to Super League
-
EUR 50,000 net salary due on 15 August 2021
-
EUR 30,000 net salary due on 31 August 2021
-
EUR 30,000 net salary due on 30 September 2021
-
EUR 30,000 net salary due on 31 October 2021
-
EUR 30,000 net salary due on 30 November 2021
-
TRY 308,608.79 as income tax
Page 5
REF FPSD-4439
18. Additionally, the Claimant requested that sporting/disciplinary sanctions be imposed against the
Respondent as provided in article 12bis of the RSTP, as well as that the costs of the present
arbitration procedure shall be borne by the Respondent.
b. Position of the Respondent
19. In its reply to the claim, the Respondent did not dispute the allegation of the Claimant as detailed
in his claim but merely indicated that it made several payments to the Claimant during the
employment relationship, it additionally paid the amount of EUR 40,000 on 9 December 2021.
20. The Respondent further mentioned that the Claimant and Respondent are continuing to negotiate
a settlement indicating that, “any decision which may be taken from your honorable chamber before
the conclusion of the negotiations may break the settlement negotiations of the parties”
21. In conclusion the Respondent requested that the FIFA DRC to dismiss the claim of the Claimant
and “determine a deadline for parties to conclude a settlement at least 20 days. At this point we reserve
all rights to provide the new evidence if any amicable solutions cannot be found by the parties.”
c.
Additional comments of the Claimant
22. On 22 February 2022, the payment documents as received by the Respondent were sent to the
Claimant for his comment. In reply, thereto the Claimant confirms that the Respondent made a
partial payment of EUR 40,000 on 9 December 2021 and mentioned that the partial payment of
EUR 40,000 needs to be deducted from the earliest receivable.
23. The Claimant requested “FIFA to decline the request of the Respondent to provide the parties twenty
days to conclude a settlement. Contrary to the allegations of the Respondent, the Parties have not
entered into any negotiation to settle the present matter amicably and the Claimant rejects this false
argument.”
24. The Claimant has indicated his salary for December 2021 and January 2022 also fell due which the
Respondent failed to pay.
25. In accordance with the partial payment of EUR 40,000 as made, the Claimant proceeded to amend
his claim as follows:
“Considering that the partial payment of 40.000 EUR was made after the due date of the respective
remunerations of the Claimant, the latter respectfully requests FIFA to order the Respondent to pay him
the accrued interest on these amounts. In other words, the following accrued interest is due to the
Claimant.
-
interest of 5% per annum from 11 May 2021 until 9 December 2021 for the amount of
17.000 EUR (winning premiums for the 2020/2021 season),
interest of 5% per annum from 9 June 2021 until 9 December 2021 for the amount of 23.000
EUR (partial payment of the Bonus for promotion to Super League),
Page 6
REF FPSD-4439
-
EUR 77,000 net remaining bonus for promotion to Super League- along with its accrued
interest of 5% per annum starting from 9 June 2021 until the date of effective payment,
EUR 50,000 net salary. - along with its accrued interest of 5% per annum starting from 16
August 2021 until the date of effective payment,
EUR 30,000 net salary. - along with its accrued interest of 5% per annum starting from 31
August 2021 until the date of effective payment,
EUR 30,000 net salary. - along with its accrued interest of 5% per annum starting from 1
October 2021 until the date of effective payment,
EUR 30,000 net salary. - along with its accrued interest of 5% per annum starting from 1
November 2021 until the date of effective payment,
EUR 30,000 net salary. - along with its accrued interest of 5% per annum starting from 1
December 2021 until the date of effective payment,
EUR 30,000 net salary. - along with its accrued interest of 5% per annum starting from 1
January 2022 until the date of effective payment,
EUR 30,000 net salary. - along with its accrued interest of 5% per annum starting from 29
January 2022 until the date of effective payment,
TRY 308,608.79 income tax. - along with its accrued interest of 5% per annum starting from
1 April 2021 until the date of effective payment.”
d. Additional comments of the Respondent
26. An opportunity was provided to the Respondent to provide further comments on the amended
claim, the Respondent in this regard stipulated the following:
“Moreover, we hereby wish to reject the amended claims of the Claimant. As of the date of the claims
submitted before FIFA DRC, it is crystal clear that December 2021 and January 2022 salaries were not
due, and the relevant salaries cannot be subjected to this case. Furthermore, we reject the assumptions
of the Claimant in regard to the December 2021 and January 2022 salaries and we hereby wish to
underline that we had no statements about the December 2021 and January 2022 salaries. With this
regard in case the Claimant alleges that the relevant salary amounts of the Claimant did not receive, it
must be subjected to another claim.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. 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 1 December 2021 and submitted for decision on
9 June 2022. 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.
28. 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 (March 2022 edition), the Dispute Resolution Chamber is
Page 7
REF FPSD-4439
competent to deal with the matter at stake, which concerns an employment-related dispute with
an international dimension between a Senegalese player and a Turkish club.
29. 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 (March 2022 edition) and considering that the
present claim was lodged on 1 December 2021, the August 2021 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
30. 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
31. 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 abovementioned 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
32. The foregoing having been established, the Chamber moved to the substance of the matter, and
took note of the fact that the parties strongly dispute the payment of certain financial obligations
by the Respondent as per the contract, namely his outstanding salaries for the period August 2021
until February 2022, as well as a partial bonus due to the Claimant as contractually agreed.
33. In this context, the Chamber acknowledged that its task was to determine, based on the evidence
presented by the parties, whether the claimed amounts had in fact remained unpaid by the
Respondent and, if so, whether the latter had a valid justification for not having complied with its
financial obligations.
34. The Chamber noted that the Respondent did not contest that the outstanding amounts were due
to the Claimant, it merely argued that it made an additional payment to the Claimant which should
be deducted from the amount as claimed, additionally that it was in the process of settlement
discussions with the Claimant.
Page 8
REF FPSD-4439
35. In this regard, the Chamber noted that the Claimant acknowledged receipt of the amount of
EUR40,000 paid by the Respondent on 9 December 2021, however the latter denied being part of
settlement discussions with the Respondent. Based on the foregoing, the Chamber decided to
acknowledge that the Respondent paid an amount of EUR 40,000 to the Claimant, which shall be
factored in the outstanding remuneration that is awarded to the Claimant.
36. Moreover, the Chamber remarked that no reasonable justification was presented by the
Respondent for not having complied with the terms of the contract.
37. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda, which
in essence means that agreements must be respected by the parties in good faith, the Respondent
is to be held liable to pay the Claimant the outstanding amounts deriving from the contract
concluded between the parties, less the amount of EUR 40,000, the receipt of which is confirmed
by the Claimant.
ii. Consequences
38. Having stated the above, the members of the Chamber turned their attention to the question of
the consequences of such unjustified breach of contract committed by the Respondent.
39. Consequently, the Chamber decided that the Respondent is liable to pay to the Claimant his
outstanding remuneration in the amount of EUR 247,000 net:
-
EUR 77,000 as partial bonus payable on 8 June 2021
-
EUR 50,000 as salary payable on 15 August 2021
-
EUR 30,000 as salary payable on 31 August 2021
-
EUR 30,000 as salary payable on 30 September 2021
-
EUR 30,000 as salary payable on 31 October 2021
-
EUR 30,000 as salary payable on 30 November 2021
-
EUR 30,000 as salary payable on 31 December 2021
-
EUR 30,000 as salary payable on 31 January 2022
40. Moreover, in connection with the bonus for promotion to the Super League as claimed by the
Claimant, the DRC concluded that there is a contractual basis for awarding said bonus, additionally
the Claimant submitted evidence on the basis of which it could be established that the Respondent
was indeed promoted to the Super League. Accordingly, the DRC decided to award the outstanding
bonus amount of EUR 77,000 to the Claimant.
41. What is more, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the Chamber decided to award 5% interest p.a. on the above amounts from
the respective due dates until the date of effective payment.
42. Additionally, the Chamber decided to award 5% interest p.a. on the following amounts taken into
account the late partial payment of EUR 40,000 on 9 December 2021:
Page 9
REF FPSD-4439
- on the amount of EUR 17,000 from 11 May 2021 until 9 December 2021
- on the amount of EUR 23,000 from 9 June 2021 until 9 December 2021
43. Lastly, the Chamber decided that the amount of TRY 308,608.79 as income tax is to be awarded to
the Claimant as in accordance with art. 6 of the contract, the Respondent undertook to pay the
said income tax on behalf of the Claimant to the tax authorities, moreover the Claimant provided
corroborating evidence substantiating this claim.
44. What is more, the Chamber decided to award 5% interest p.a. on the above amount from 1 April
2021 until the date of effective payment.
45. In addition, the Claimant established that the Respondent had delayed a due payment for more
than 30 days without a prima facie contractual basis.
46. In continuation, bearing in mind the foregoing considerations, 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.
47. The Chamber established that in virtue of art. 12bis par. 4 of the Regulations he has competence
to impose sanctions on the Respondent. In this context, the DRC highlighted that, over the past
2 years under case ref. nos. 20-00507/sil,20-00654/sil,20-01219/chz and FPSD-4416/pam, the
Respondent had already been found to have delayed a due payment for more than 30 days
without a prima facie contractual basis.
48. Moreover, the Chamber referred to art. 12bis par. 6 of the Regulations, which establishes that a
repeated offence will be considered as an aggravating circumstance and lead to a more severe
penalty.
49. Bearing in mind the above, the deciding body decided to impose a fine on the Respondent in
accordance with art. 12bis par. 4 lit. c) of the Regulations. On account of the above and taking into
consideration the total amount of overdue payables due, the Chamber regarded a reprimand plus
fine amounting to USD 50,000 as appropriate and hence decided to impose said fine on the
Respondent.
iii. Compliance with monetary decisions
50. 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.
Page 10
REF FPSD-4439
51. 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.
52. 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.
53. 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.
54. 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
55. 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.
56. 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.
57. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any
of the parties.
Page 11
REF FPSD-4439
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Mamadou Diarra, is accepted.
2.
The Respondent, Giresunspor, has to pay to the Claimant, the following amount:
(a)
EUR 307,000 as outstanding remuneration plus 5% interest p.a. as from the respective due
dates until the date of effective payment as follows:
-
on the amount of EUR 77,000 as from 9 June 2021
-
on the amount of EUR 50,000 as from 16 August 2021
-
on the amount of EUR 30,000 as from 31 August 2021
-
on the amount of EUR 30,000 as from 1 October 2021
-
on the amount of EUR 30,000 as from 1 November 2021
-
on the amount of EUR 30,000 as from 1 December 2021
-
on the amount of EUR 30,000 as from 1 January 2022
-
on the amount of EUR 30,000 as from 1 February 2022
(b)
5% interest p.a. to be paid on the following amounts taken into account the late partial
payment of EUR 40,000 on 9 December 2021:
-
on the amount of 17.000 EUR from 11 May 2021 until 9 December 2021
-
on the amount of 23.000 EUR from 9 June 2021 until 9 December 2021
(c)
TRY 308,608.79 as outstanding amount plus 5% interest p.a. as from 1 April 2021 until the date
of effective payment
3.
Any further claims of the Claimant are rejected.
4.
A reprimand together with a fine in the amount of USD 50,000 is imposed on the Respondent. (cf.
note relating to the payment of the fine below)
5.
Full payment of the amounts mentioned in point 2 (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 of the
amounts mentioned in point 2 (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 the ban shall be of
three entire and consecutive registration periods.
Page 12
REF FPSD-4439
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
article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
8. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 13
REF FPSD-4439
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).
NOTE RELATING TO THE PAYMENT OF THE FINE
If applicable, payments to FIFA should be made by wire transfer in US dollars (USD) to the following
bank account:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230
IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
Please mention the applicable reference number
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 14