DRC Overdue Payables
Texto da decisão
REF. FPSD-15138
Decision of the
Dispute Resolution Chamber
passed on 19 September 2024
regarding an employment-related dispute concerning the Player
Moryke Fofana
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Dana Mohamed Al-Noaimi (Qatar), Member
Johan van Gaalen (South Africa), Member
CLAIMANT:
Moryke Fofana, Côte d'Ivoire
Represented by Mr Aydin Doganay
RESPONDENT:
Yilport Samsunpor, Türkiye
Represented by Mr Anıl Dinçer
pg. 2
REF. FPSD-15138
I. Facts of the case
1.
On 17 June 2022, the Ivorian player Moryke Fofana (hereinafter: Claimant or player) and the
Turkish club Samsunspor (hereinafter: club or Respondent) concluded an employment
contract (hereinafter: the Contract) valid as from the date of signature until 31 May 2024 (or
two full seasons – 2022/2023 and 2023/2024).
2.
According to art. 6 of the Contract, the Respondent undertook to pay the Claimant the
following salary:
“In case of the fact that the Club competes in Super League: Salary payment of EUR 600,000 net
in 10 equal payments (EUR 60,000 net monthly) between 30 August 2023 and 30 May 2024.
Car & Accommodation: EUR 10,000 net in 10 equal instalments (EUR 1,000 net monthly) between
30 June 2023 and 30 May 2024. (sic – Note: assume payments begin as from August, similar to
salary).”
3.
On 22 May 2024, the Respondent sent the following message into the official WhatsApp
group chat:
“2nd group will also have weight and fat measurements at doctor’s room. Later on you go outside
at 12.00 for running test.”
4.
On 25 May 2024, the Claimant participated in the Respondent’s last match of the season
as a substitute.
5.
On 27 May 2024, following the final match of the season, the Respondent sent a letter to
the Claimant via email requesting him to explain within 48 hours why he missed the
allegedly scheduled weight measurements and running tests.
6.
Following no reply from the Claimant, on 30 May 2024, the Respondent informed the
Claimant in writing that, due to his unauthorised absence, a fine in the amount of EUR
5,000 would be imposed.
7.
On 10 June 2024, the Claimant replied stating that the fine is abusive and should be
withdrawn for the following reasons:
-
The Claimant denies having been “involved in any misconduct”;
The Claimant has been on holiday since 25 May 2024 (following the last match of the
season), thus not having received the warning letter;
The Claimant was never reprimanded nor contacted on or after 23 May 2024 until
receiving the letter dated 27 May 2024.
pg. 3
REF. FPSD-15138
8.
On 12 June 2024, the Claimant sent a further letter, this time putting the Respondent in
default of payment of EUR 67,000 net, corresponding to the following amounts, granting a
deadline of 10 days to remit the amount:
-
9.
EUR 60,000 as salary for May 2024;
EUR 5,000 as remaining salary of April 2024;
EUR 2,000 as accommodation allowances for April 2024 and May 2024.
On 14 June 2024, the Respondent replied, stating that the Claimant was not the only player
who was sanctioned, that the sanction was imposed in line with the official club regulations,
and that the Claimant was – in vain – invited to provide an explanation for his misconduct.
10. On 18 June 2024, the Claimant replied to the Respondent informed that he was verbally
informed by the relevant club staff that he could come at another time to complete the
weighing and running test. The Claimant equally reiterated that he was not warned or
reprimanded in any way until the written notice, which reached him after he was already
on holiday (and at the end of the duration of the season and Contract). Consequently, the
Claimant insisted on his salary to be paid fully, and reiterated the deadline issued in his
previous default notice.
11. On 24 June 2024, the Respondent sent a further correspondence to the Claimant,
reiterating its previous assertions.
II. Proceedings before FIFA
12. On 4 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
13. According to the Claimant, the Respondent failed to pay the last salary of the Contract, as
well as a part of the salary of April 2024 and two accommodation allowances, all despite
having been put in default of payment.
14. The Claimant equally emphasised that the Respondent attempted to abusively impose a
fine of EUR 5,000 to deliberately reduce its payment obligations towards him, due to the
fact that it previously allegedly attempted to drive him out, whereas he refused to sign a
mutual termination agreement.
15. The Claimant hereby emphasised that he did not breach the Contract by allegedly missing
the weighing and running tests, as he was verbally informed that these could be taken at a
flexible time at the player’s discretion.
pg. 4
REF. FPSD-15138
16. Moreover, the Claimant was of the opinion that the warning / internal disciplinary
mechanism was invalid and arbitrary, considering that he had been on holiday as from the
last match of the season (25 May 2024) and considering the proximity of the end of the
Contract to the warning.
17. The Claimant therefore insisted that the fine was abusive and that his request for relief
should be upheld.
18. The Claimant requested as follows:
-
EUR 67,000 net as outstanding remuneration;
Interest as from the due dates;
Payment of any costs arising in the present procedure to fall on the Respondent.
b. Position of the Respondent
19. In its reply, the Respondent firstly outlined that it had made a payment of EUR 61,000 on 5
July 2024, corresponding specifically to the salary and accommodation allowance for May
2024 which the Claimant did not account for in his request for relief.
20. The Respondent subsequently emphasised that the fine of EUR 5,000 is entirely justified
based on the fact that the Claimant missed “weight measurements” and “running tests”,
and thereafter failed to provide an explanation in the official disciplinary process.
21. The Respondent wished to stress that the fine was “symbolic”, as the Claimant deliberately
missed the appointments, and not designed in a way to punish him monetarily. The
Respondent hereby referred to its internal regulations and argued that the correct amount
for the fine should be EUR 20,000, whereas the present fine is significantly lower than that,
demonstrating the club’s good faith.
22. The Respondent did not comment on the remaining EUR 1,000 amount corresponding to
one of the two claimed accommodation allowances.
23. All in all, the Respondent requested for the claim to be rejected.
c. Reaction of the Claimant to alleged payments
24. In his replica, the Claimant acknowledged receipt of the payment of EUR 61,000, insisted,
however, on receiving a remaining amount of EUR 6,415, composed allegedly of EUR 5,415
for the remainder of the salary of April 2024 and EUR 1,000 corresponding to the
accommodation allowance for said month..
pg. 5
REF. FPSD-15138
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 04 July 2024 and submitted for decision on
19 September 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 an Ivorian 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 04 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. 6
REF. FPSD-15138
i. Main legal discussion and considerations
30. The Chamber then moved to the substance of the matter, and took note of the fact that
the parties dispute the obligation to pay an outstanding amount of EUR 6,000 which
corresponded to an accommodation allowance for the month of April 2024 as well as a
deduction from the Claimant’s remuneration as a fine for missing scheduled weight
measurement and running sessions.
31. In this context, the Chamber acknowledged that it its task was to determine whether the
deduction was lawful, based on the evidence on file. The Chamber at this stage recalled
that the parties both agreed that the amount of EUR 61,000 had been remitted during the
proceedings and that the sum of EUR 6,000 was the only amount which remained in
dispute.
32. At this stage, the Chamber noted that the Claimant pointed out during the proceedings
that the outstanding amount for April 2024 corresponded to EUR 5,415 rather than
EUR 5,000.
33. In this regard, the Chamber wished to point out that both parties initially agreed that the
deduction made by the Respondent was only EUR 5,000.
34. It was unclear to the Chamber whether or not said amendment was due to a clerical error
or whether the Claimant wished to amend his position, in any case, it deemed such
amendment a contradiction to the previous acknowledgement that only EUR 5,000 was
outstanding, thus constituting venire contra factum proprium and proceeded to disregard
such subsequent amendment and instead to treat the amount in dispute as EUR 6,000 as
previously established.
35. As for this disputed amount, the Chamber firstly observed that the WhatsApp message
sent by the Respondent did not indicate a clear date when such appointments are
scheduled to take place. Based on the evidence on file, the Chamber deemed that it was
unclear when exactly the Claimant had to present himself for the scheduled activities.
36. Furthermore, the purported date of the weighing and running tests was 23 May 2024; the
final match of the season was 25 May 2024; the warning letter was sent on 27 May 2024
with a deadline of 48h to respond – i.e., one day before the expiry of the Contract. The
extremely brief timeline and proximity to the end date of the Contract for such a minor
incident rendered the fine excessive in the Chamber’s opinion, given that, as correctly
pointed out by the Claimant, such fine amounts to 10% of the monthly salary.
37. Lastly, the Chamber observed that the Respondent – as expressly outlined in its submission
– paid the salary and accommodation allowance for May 2024 in full (5 July 2024), whereas
the amount in dispute corresponds to a part of the salary of April 2024 and the
corresponding accommodation allowance. The Respondent’s default, therefore, pre-dates
pg. 7
REF. FPSD-15138
the alleged actus reus related to the fine, rendering the line of argument contradictory (cf.
venire contra factum proprium).
38. As a consequence, the Chamber decided to dismiss the argument presented by the
Respondent, and hold that the deduction to the Claimant’s salary in the amount of
EUR 5,000 was unlawful.
39. At this stage, the Chamber recalled once again that the non-payment of the
accommodation allowance of EUR 1,000 for April 2024 remained uncontested.
40. Based on all the above, the Chamber concluded that the total outstanding amount to which
the Claimant was entitled was EUR 6,000.
41. Consequently, the Chamber decided to award the Claimant an outstanding amount of
EUR 6,000 in accordance with pacta sunt servanda.
42. Lastly, the Chamber decided to award annual interest of 5% as from 1 May 2024 on the
above amounts until the date of effective payment.
ii. Application of art. 12bis RSTP
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.
44. To this end, the Chamber confirmed that the player put the club in default of payment of
the amounts sought, which had fallen due more than 30 days before, 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 facia contractual basis. 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 this is the 1st offense by the club within the last two years, the Chamber decided to
impose a warning on the club in accordance with art. 12bis par. 4 lit. a) 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.
pg. 8
REF. FPSD-15138
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.
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. 9
REF. FPSD-15138
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Moryke Fofana, is partially accepted.
2.
The Respondent, Yilport Samsunpor, must pay to the Claimant EUR 6,000 as outstanding
remuneration plus 5% interest p.a. as from 1 May 2024 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A warning 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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 10
REF. FPSD-15138
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. 11