DRC Overdue Payables
Texto da decisão
REF FPSD-2904
Decision of the
Dispute Resolution Chamber
passed on 8 October 2021
regarding an employment-related dispute concerning the player Moryke Fofana
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Tomislav Kasalo (Croatia), member
Daan de Jong (Netherlands), member
CLAIMANT:
Moryke Fofana, Côte d'Ivoire
RESPONDENT:
Yeni Malatyaspor, Turkey
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REF FPSD-2904
I.
Facts
1.
The parties concluded a contract valid as from 20 June 2019 until 31 May 2021.
2.
According to the contract, the player was entitled, inter alia, to the following:
For 2020-2021 Football Season : 900 .000 EURO NET A.Aforementioned amount is to be paid to the
PLAYER by the CLUB in 10 (ten) installments on the below mentioned dates;
Aa.90.000 Euros {*10) start on 30.August 2020- finish on 30 May 2021
3.
On 2 June 2021, the legal representative of the player sent a default notice, indicating the following:
“I hereby would like to kindly notify you to make the payment of the outstanding overdue to the
Notifying Party, amounting of 310.000,00 euros net which it is corresponding to the payment of part of
January’s (40.000,00 euros = 90.000,00 – 50.000,00), February’s (90.000 euros), March’s (90.000 euros)
and April’s 2021 salaries.
May’s 2021 salary is still due to the Player (90.000,00 euros).
In accordance with the article 12bis of the Regulations on Status and Transfers of
Players, should you fail to pay the abovementioned amount (310.000,00 euros) within ten
(10) open days following the receipt of this notification”
4.
On 24 June 2021, the Claimant lodged a claim before FIFA and requested the payment the total amount
of EUR 400,000, plus 5% interest p.a., detailed as follows:
- EUR 40,000 corresponding to part of the salary for January 2021 (the player acknowledged that 50,000
EUR was paid on 6 May);
- EUR 90,000 corresponding to the salary for February 2021
- EUR 90,000 corresponding to the salary for March 2021;
- EUR 90,000 corresponding to the salary for April 2021
- EUR 90,000 corresponding to the salary for May 2021.
5.
In its reply to the claim, the Club acknowledged the existence of the contractual relationship, and
provided a copy of the following documents, which were made available in Turkish and accompanied
with a translation into English:
Name:
Date:
Amount
Bank Receipt (Garanti BBVA)
13/10/2020
EUR 90,000
Bank Receipt (Garanti BBVA) “Salary 30.11.2021”
26/01/2021
EUR 90,000
Bank Receipt (Garanti BBVA) “One full and one half salary for season 2020/2021”
18/02/2021
EUR 135,000
Bank Receipt (Garanti BBVA) “in return for receivable for season 2020-2021”
6.5.2021
EUR 50,000
Bank Receipt (Garanti BBVA)
18/12/2020
Sekerbank receipt allegedly signed by the player with the wording “I got the
31.03.2021
original cheque in order to offset my salary dated 30.09.2020”
document)
EUR 22,500
(date
of
the
EUR 60,500
19.6.2020 (date of the cheque)
Bank Receipt Outgoing Fund Transfer “for his salary 30.10.2020”.
6.
7.
6/01/2021
EUR 45,000
TOTAL:
EUR 493,000
In his replica, the player considered that, from the proof of payment, it can be established that the Club
still owes him the sum of EUR 400,000.
In the opinion to the player, the club is only trying to delay the proceedings
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REF FPSD-2904
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.
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 February
2021 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 documentary evidence which it considered
pertinent for the assessment of the matter at hand.
5.
In this respect, the Chamber noted that, the parties concluded an employment contract valid as from
as from 20 June 2019 until 31 May 2021 with the economic conditions quoted in point I.2. above.
6.
Thereafter, the Chamber observed that the Claimant lodged a claim before FIFA for outstanding
remuneration, and requested the payment of EUR 400,000, detailed as follows:
- EUR 40,000 corresponding to part of the salary for January 2021 (the player acknowledged that
50,000 EUR was paid on 6 May);
- EUR 90,000 corresponding to the salary for February 2021
- EUR 90,000 corresponding to the salary for March 2021;
- EUR 90,000 corresponding to the salary for April 2021
- EUR 90,000 corresponding to the salary for May 2021.
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REF FPSD-2904
7.
On the other hand, the Chamber took note of the Respondent’s position, which fundamentally
consisted in the provision of the following receipts:
Name:
Bank Receipt (Garanti BBVA)
Bank Receipt (Garanti BBVA) “Salary 30.11.2021”
Bank Receipt (Garanti BBVA) “One full and one half salary
for season 2020/2021”
Bank Receipt (Garanti BBVA) “in return for receivable for
season 2020-2021”
Bank Receipt (Garanti BBVA)
Sekerbank receipt allegedly signed by the player with the
wording “I got the original cheque in order to offset my
salary dated 30.09.2020”
Date:
13/10/2020
26/01/2021
18/02/2021
Amount
EUR 90,000
EUR 90,000
EUR 135,000
6.5.2021
EUR 50,000
18/12/2020
EUR 22,500
31.03.2021 (date EUR 60,500
of the document)
19.6.2020 (date of
the cheque)
Bank Receipt Outgoing Fund Transfer “for his salary 6/01/2021
EUR 45,000
30.10.2020”.
TOTAL:
EUR 493,000
8.
In this respect, the Chamber considered pertinent to recall the contents of art. 12 of the Procedural
Rules, according to which “3. Any party claiming a right on the basis of an alleged fact shall carry
the burden of proof. During the proceedings, the parties shall submit all relevant facts and evidence
of which they are aware at that time, or of which they should have been aware if they had exercised
due care” and “7. Evidence shall be considered with free discretion, taking into account the conduct
of the parties during the proceedings, especially a failure to comply with a personal summons, a
refusal to answer questions and the withholding of requested evidence.”
9.
In relation to provided receipts, the Chamber noted, however, that none of them prove that they are
related to the claimed amounts from January 2021 until May 2021
10.
In view of the above, the Chamber had no other option that to consider that the Claimed amount
of EUR 400,000, as mentioned in point II. 6 above, remains outstanding.
11.
Consequently, in strict application of the principle of pacta sunt servanda, the Dispute Resolution
Chamber established that the Respondent has to pay to the Claimant, the total outstanding amount
of EUR 400,000, as agreed in the contract between the parties.
12.
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.
13.
In continuation, taking into account the previous considerations, the Dispute Resolution 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.
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REF FPSD-2904
14.
The Dispute Resolution Chamber established that in virtue of art. 12bis par. 4 of the Regulations it
has competence to impose sanctions on the Respondent. In this context, the Dispute Resolution
Chamber highlighted that the Respondent had already been found to have delayed a due payment
for more than 30 days without a prima facie contractual basis. In view of the above, the Dispute
Resolution Chamber decided to impose a fine of the Regulations on the Respondent in the amount
20 000 USD, considering that the Respondent was already been found in breach of art. 12 bis of the
Regulations (cf. FPSD-2021 & FPSD-3036).
15.
Moreover, the Dispute Resolution 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.
16.
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.
17.
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.
18.
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.
19.
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 FPSD-2904
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Moryke Fofana, is accepted.
2.
The Respondent, Yeni Malatyaspor, has to pay to the Claimant, the amount of EUR 400,000
as outstanding remuneration plus interest as follows:
-
5% interest p.a. over the amount of EUR 40,000 as from 1 February 2021 until the date of effective payment;
-
5% interest p.a. over the amount of EUR 90,000 as from 1 March 2021 until the date of effective payment;
-
5% interest p.a. over the amount of EUR 90,000 as from 1 April 2021 until the date of effective payment;
-
5% interest p.a. over the amount of EUR 90,000 as from 1 May 2021 until the date of effective payment;
-
5% interest p.a. over the amount of EUR 90,000 as from 1 June 2021 until the date of effective payment;
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
4.
A fine in the amount of USD 20,000 is imposed on the respondent (art. 12 bis of the
Regulations)
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 2021
edition), 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.
6. 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.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF FPSD-2904
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).
NOTE RELATING TO THE PAYMENT OF THE FINE
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
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