Labour Disputes
Texto da decisão
REF FPSD-6211
Decision of the
Dispute Resolution Chamber
passed on 21 July 2022
regarding an employment-related dispute concerning the player Nouha Dicko
BY:
Frans DE WEGER (Netherlands), Chairperson
Alejandro ATILIO TARABORELLI (Argentina), member
Roy VERMEER (Netherlands), member
CLAIMANT:
Nouha Dicko, France
RESPONDENT:
Yeni Malatyaspor, Turkey
REF FPSD-6211
I Facts
1. On 13 January 2022, the parties concluded an employment contract valid as from the date
of signature until 31 May 2022. The contract further stipulated in this respect that, “in the
case of club stay in Super League at the end of 2021/2022 season, contract will be extended for
one more season which is end 31th May 2023.” (the “optional season”).
2. According to the contract, the player was entitled to a total remuneration of EUR 453,500
net for the season 2021/2022, payable as follows:
3. In relation to the extended contract, the contract stipulated a remuneration of EUR 607,000
EUR net for the season 2022/2023, detailed as follows:
4. Art. 17 of the contract stipulated the following:
“The parties agreed on a compensation for breach of contract payable by the party in breach to
the prejudiced pa ty. The compensation clause in provides that the party in breach shall pay to
the other party an amount of EUR 20,000 as compensation for the early termination of the
contract.”
5. On 21 April 2022, in the matter FPSD-5494 and opposing the same parties, the Dispute
Resolution Chamber decided upon the following:
“ 2. The Respondent, Yeni Malatyaspor, has to pay to the Claimant, the outstanding amount of
EUR 271,400 plus interest as follows:
- 5% interest p.a. over the amount of EUR 75,000 as from 21 January 2022 until the date of effective
payment;
- 5% interest p.a. over the amount of EUR 75,000 as from 1 February 2022 until the date of effective
payment;
- 5% interest p.a. over the amount of EUR 60,700 as from 16 February 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 60,700 as from 1 March 2022 until the date of effective
payment;”
REF FPSD-6211
6. On 4 April 2022, the player sent a default notice referring to art. 14 bis of the regulations, by
means of which he requested the payment of an outstanding amount of EUR 332,100 (i.e.
EUR 271,400 already pending in FPSD-54940 and EUR 60,700 due on 30 March 2022) within
15 days.
7. On 11 May 2022, the player sent a termination letter while referring to his previous
correspondence.,
8. On 12 May 2022, the Turkish Football Federation confirmed that the termination was entered
into its records.
9. On 31 May 2022, lodged a claim before FIFA for breach of contract without just cause and
requested the payment of a total amount of EUR 469,688.70, plus 5% interest p.a., detailed
as follows:
- EUR 142,938,70 as outstanding remuneration, corresponding to the salaries of March
60.700 EUR, April (EUR 60.700) and part of May until 11/05/2022, i.e. EUR 21.538,70),
- EUR 226,750 as compensation for breach of the contract by the Club,
- EUR 100,000 as “non-pecuniary damages caused by the Club”. In this regard, the player
explained that he “is experiencing serious deep sadness and insecurity problems”.
10. In its reply to the claim, the club acknowledged that “due to the financial difficulties of the
club, payments could not be made on time.”
11. However, the club explained that in accordance with art. 17 of the contract, the maximum
amount of compensation to be obtained by the parties is determined as EUR 20,000.
REF FPSD-6211
II Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber) 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 31 May 2022 and submitted for decision on 21 July 2022. Taking into
account the wording of art. 34 of the June 2022 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.
2. Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 2022 edition), it 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.
3. 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 31 May 2022, the March 2022 edition of said regulations (hereinafter: the Regulations)
is applicable to the matter at hand as to the substance.
b. Burden of proof
4. 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
5. 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
6. The Chamber first noted that, on 13 January 2022, the parties concluded an employment contract
valid as from the date of signature until 31 May 2022 and with the economic conditions that are
quoted in point I. 2 above.
REF FPSD-6211
7. Subsequently, the Chamber took note of the fact that the player lodged a claim before FIFA arguing
that, after having put the club in default, he terminated the contract on 11 May 2022 due to the
existence of outstanding salaries since March 2022.
8. On this note, the Chamber also noted that, in the matter FPSD-5494, it already decided on 21 April
2022 that club already owed the amount of EUR 271,400 as outstanding remuneration for amounts
already due since 20 January 2022.
9. On the other hand, the Chamber took note of the position of the Respondent, and observed that the
latter fundamentally acknowledged the claim as it argued that “due to the financial difficulties of the
club, payments could not be made on time.”
10. In view of the above, the Chamber noted that (1) it appears that the club failed to pay the amounts
due on 30 March 2022 and 30 April 2022 and that (2), from the matter FPSD-5494, it also appears that
the club had a substantial debt towards the player.
11. As a result, the Chamber established that the club seriously neglected its financial obligations towards
the player as per the contract, and therefore decided that the player terminated the contract with just
cause on 11 May 2022.
ii. Consequences
12. Having stated the above, the members of the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
13. Before entering into the calculation of the payable compensation, the Chamber noted that the player
is entitled to his outstanding dues until the date of termination of the contract.
14. In particular, while noting the amounts that were already awarded in the matter FPSD-5494, the
Chamber observed that, from the evidence on file, the following amounts appear to be outstanding:
-March (due on 30 March 2022): EUR 60.700,
-April (due on 30 April 2022): EUR 60.700,
-May (EUR 60,700, due on 30 May 2022, but pro rata is due until the date of termination of the contract
i.e. USD 21,580.70
Total: EUR 142,980.70
15. The Chamber thus confirmed that the financial obligations deemed as outstanding in the present case
correspond to EUR 142,980.70.
16. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the
Chamber decided that the Respondent is liable to pay to the Claimant the amounts claimed as
outstanding under the contract, in total EUR 142,980.70, as detailed above.
17. In addition, taking into consideration the Claimant’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on the
outstanding amounts as from the due dates until the date of effective payment.
REF FPSD-6211
18. Having stated the above, the Chamber turned to the calculation of the amount of compensation
payable to the player by the club in the case at stake. In doing so, the Chamber firstly recapitulated
that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be
calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute,
with due consideration for the law of the country concerned, the specificity of sport and further
objective criteria, including in particular, the remuneration and other benefits due to the player under
the existing contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the protected
period.
19. In application of the relevant provision, the Chamber held that it first of all had to clarify whether the
pertinent employment contract contained a provision by means of which the parties had beforehand
agreed upon an amount of compensation payable by the contractual parties in the event of breach of
contract.
20. In this regard, the Chamber took note of the wording of clause 17 of the contract, which established
that “The parties agreed on a compensation for breach of contract payable by the party in breach to the
prejudiced party. The compensation clause in provides that the party in breach shall pay to the other party
an amount of EUR 20,000 as compensation for the early termination of the contract.”
21. After analysing the content of the aforementioned clause, the Chamber concluded that it fulfilled the
criteria of reciprocity and proportionality, in line with the Chamber’s longstanding jurisprudence, and
therefore was to be applied in the case at hand to determine the amount of compensation payable
by the Respondent to the Claimant.
22. Consequently, the Chamber decided that the amount of EUR 20,000, as per the compensation clause
agreed between the parties in the contract, is due to the player by the club.
23. Lastly, taking into consideration the Claimant’s request as well as the constant practice of the Chamber
in this regard, the latter decided to award the Claimant interest on said compensation at the rate of
5% p.a. as of the date of claim until the date of effective payment.
iii. Compliance with monetary decisions
24. In continuation, the Chamber focused on the further consequences of the breach of contract in
question and, in this respect, it addressed the question of sporting sanctions against the club in
accordance with art. 17 par. 4 of the Regulations. The cited provision stipulates that, in addition to the
obligation to pay compensation, sporting sanctions shall be imposed on any club found to be in
breach of contract during the protected period.
25. In this respect, the Chamber referred to item 7 of the “Definitions” section of the Regulations, which
stipulates inter alia that the protected period shall last “for three entire seasons or three years, whichever
comes first, following the entry into force of a contract, where such contract is concluded prior to the 28th
birthday of the professional, or two entire seasons or two years, whichever comes first, following the entry
into force of a contract, where such contract is concluded after the 28th birthday of the professional”.
REF FPSD-6211
26. In this respect, the Chamber took note that the player was born on 14 May 1992 and the relevant
contract with the club was concluded on 13 January 2022. Furthermore, the Chamber noted that the
player terminated the contract without just cause on 11 May 2022, i.e. only 5 months after its
conclusion. The breach of contract by the club had therefore occurred within the protected period.
27. Furthermore, the Chamber noted that the club had already been held liable of breaching other
employment contracts without just cause in recent occasions, in particular in case such as 20-01115
(decided on 18 May 2021), FPSD-5125 (decided on 5 April 2022), FPSD-5123 (decided on 5 April 2022),
FPSD-5224 (decided on 5 April 2022) and FPSD-5688 (decided on 21 July 2022).
28. Consequently, the Chamber decided that, by virtue of art. 17 par. 4 of the Regulations, the club shall
be sanctioned with a ban from registering any new players, either nationally or internationally, for two
entire and consecutive registration periods. The sanction shall enter into force as from the next
registration period.
d.
Costs
29. 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.
30. Furthermore, 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.
31. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made by any
of the parties.
REF FPSD-6211
III Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Nouha Dicko, is accepted.
2.
The Respondent, Yeni Malatyaspor, has to pay to the Claimant, the following amounts:
- EUR 142,980.70 as outstanding remuneration plus interest as follows:
- 5% interest p.a. over the amount of EUR 60,700 as from 1 April 2022 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 60,700 as from 1 May 2022 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 21,580.70 as from 1 June 2022 until the date of effective payment.
- EUR 20,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 31 May 2022 until the date of effective payment.
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.
The club is sanctioned with a ban from registering any new players, either nationally
or internationally, for two entire and consecutive registration periods (art. 17 par. 4 of the
Regulations). The sanction will enter into force as from the next registration period.
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 present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
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.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-6211
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).
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