DRC Overdue Payables
Texto da decisão
REF FPSD-6751
Decision of the
Dispute Resolution Chamber
passed on 29 September 2022
regarding an employment-related dispute concerning the player Cyle Larin
COMPOSITION:
ONGARO, OMAR (Italy), Deputy Chairperson
AWAD ALTHEBITY, Khalid (Saudi Arabia), Member
COLUCCI, Michele (Italy), Member
CLAIMANT:
Cyle Christopher Larin, Canada
Represented by Monteneri Sports Law
RESPONDENT:
Besiktas Futbol, Türkiye
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I. Facts of the case
1.
On 15 January 2018, the Canadian player, Mr Cyle Larin (hereinafter: the player or the
Claimant), and the Turkish club, Besiktas Futbol (hereinafter: the club or the Respondent),
concluded an employment contract valid as from the date of signature until 31 May 2022
(hereinafter: the employment contract).
2.
Article 5, lit. i) of the employment contract read as follows, in verbis:
“The player agrees to sign and comply with the Integral Disciplinary Regulations which may be
altered by the club at any time. The player hereby agrees that in case of a breach by the player
of his obligations set forth herein in the Internal Disciplinary Regulations, the club shall be
entitled to fine the player reasonable and proportional penal sum as declared and calculated
by the club’s disciplinary regulations, and that the player shall pay this penal sum to the club
upon the receipt of the club’s written request, and that the receivables the player may have
with the club. The club declares that (i) it shall request a written defence from the player (ii)
provide him the right for a fair hearing and (iii) provide him the right to be represented in such
hearing before issuing any disciplinary sanction to the player”.
3.
4.
In accordance with article 6 of the employment contract, the club undertook to pay the
player inter alia the following amounts:
a.
EUR 1,650,000 net as the total remuneration for the 2021/2022 season, payable
in 10 instalments of EUR 165,000 net each, being the last one due by 31 May
2022;
b.
EUR 150,000 net as bonus for appearance “in case the player takes part in at least
20 (twenty) official matches (excluding Turkish Cup matches only) and stays in the
field for at least 45 minutes”, payable “on July 31 following the ending of the season
during which the accomplishment is fulfilled” (cf. art. 6C, lit. i and iv of the
employment contract); and
c.
maximum EUR 3,000 net as housing allowance, provided that the player would
be liable to pay any bills and maintenance costs of the house and “if rent if less
than the maximum amount stipulated under this article, the club will not be required
to pay the maximum amount but only the amount equivalent to the rent of the
house” (cf. art. 6E, lit. I of the employment contract).
On 25 September 2021, the player signed a copy of the club’s disciplinary regulations for
the 2021/2022 season (hereinafter: the Disciplinary Regulations). Said document read inter
alia as follows (emphasis in the original):
“VIII. PRINCIPLE OF DETERMINATION OF FINES
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The fines to be imposed on a player shall be calculated in consideration of the cost of player
for the club.
Cost of player: the total transfer fee includes all kinds of rights (including all monetary benefits
and other benefits measurable in terms of money, which are committed under a contract
executed with player’s himself or a third party for transfer of image rights) including other
rights measurable in terms of money which are committed by the club to the player (the full
amount of per-game salaries shall be included in calculations regardless of the number of
games actually played by the player). Furthermore, if the player has been transferred from
another club, then the transfer fee having been paid to that club shall be added to the total
transfer fee committed by the club to the player in proportional to the term of the contract.
a. Daily cost of the player: the daily cost of the player is calculated by dividing his annual costs
into 300.
b. Per-game cost of the player: the per-game cost of the player is calculated by dividing his
aggregate seasonal cost into the number of games played during the season.
[...]
G. Fines in case of yellow and red cards and caution, expulsion and match suspension by TFF
and UEFA
The player that commits any unsportsmanlike act, unsportsmanlike declaration, battery, racist
discourse, or deliberate action as defined in the respective directives of UEFA or the TFF, and/or
commits any other offences in breach of the Directives of fair play rules and/or is given a ban
or deemed ineligible to play by a Disciplinary Committee shall be deprived of his per-game
salaries as well as bonus payments payable for the match in question as well as other matches
that the player is consequently banned from. Furthermore, the player shall also be fined for
an extra amount equal to his per-game cost for each game banned, and shall be deprived of
bonus payments payable for each game banned since the player has left his team alone.
If the player is sent out from a game for suffering a red card in form of second yellow card,
then the player shall be deprived of his per-game salary as well as payment of bonuses payable
for the game for which he is sent out regardless of the reason of getting such yellow cards.
Furthermore, the player shall also be fined for an extra amount equal to his cost per one game
since the player has left his team alone.
[...]
Fines under this clause may be determined by the club within 30 days following the ending of
the relevant season.
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X. RESOLUTION AND ACCRUAL OF FINES
Offences requiring imposition of a fine shall be discussed and resolved at meetings of the board
of directors. A notarized copy of a resolution shall be sent to the player with another copy to
the Association, and necessary entries shall be made in the club’s accounting records. The fines
may be imposed either during the season or within fifteen days upon completion of the last
official game of the club”.
5.
On 3 April 2022, the club’s team played against the also Turkish club, Trabzonspor AS. The
player received a red card during the match.
6.
On 7 April 2022, the Disciplinary Committee of the Türkiye Futbol Federasyonu (TFF)
issued a decision stating that due to the player’s disciplinary violations on 3 April 2022, he
was suspended for one match and a fine of TRY 4,500 was imposed on the Respondent.
7.
On 5 July 2022, the player put the club in default and requested payment of EUR 327,000
net within the 10 following days, corresponding to the salary of May 2022 (EUR 165,000),
appearance bonus (EUR 150,000), and housing allowance for the months of February,
March, April, and May 2022 (EUR 3,000 each, thus EUR 12,000 in total).
II. Proceedings before FIFA
8.
On 19 July 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Claim of the player
9.
In his claim, the player recalled the content of the employment contract and argued that
the club failed to pay him part of his remuneration.
10. As such, the player referred to art. 12bis of the FIFA Regulations on the Status and
Transfer of Players (RSTP) and requested to be awarded the following amounts:
a.
EUR 165,000 net as outstanding monthly salary due on 31 May 2022 plus 5%
interest p.a. as from 1 June 2022 until the date of effective payment;
b.
EUR 150,000 net as outstanding appearance bonus due under Art. 6, lit. (C) point
(i) of the employment contract plus 5% interest p.a. as from 1 June 2022 until
the date of effective payment; and
c.
EUR 12,000 net as outstanding housing allowances for the months of February
2022, March 2022, April 2022 and May 2022.
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b. Reply of the club
11. On 12 August 2022, the club filed its reply to the player’s claim.
12. The club firstly confirmed not having paid the player’s salary of May 2022 amounting to
EUR 165,000 net. Nevertheless, it argued that the player incurred in several expenses (e.g.
COVID tests, match tickets, and flight tickets) that should be deducted from such concept
in the total amount of EUR 3,904.84.
13. Thereafter, the club explained that on the match played on 3 April 2022, the player
received a red card due to violent behaviour. As a consequence, the club stressed that
the player should be liable to pay (deduct from his salaries): (i) TRY 4,500 as the fine
imposed by the TFF on the club on 7 April 2022; and (ii) EUR 41,315.54 as the disciplinary
fine imposed by the club in accordance with its Disciplinary Regulations.
14. Specifically, regarding the second fine, the club once again referred to its Disciplinary
Regulations and argued that it amounted to the player’s “per-game cost” i.e. the player’s
value for the season divided per the number of games played.
15. Finally, the club clarified that the appearance bonus requested by the player was not due
by the time the claim was filed. On the contrary, it also fell due on 31 July 2022 and could
not be considered as “overdue payable” in light of the wording of art. 12bis of the FIFA
RSTP.
16. Based on the foregoing, the club’s requests for relief were as follows, in verbis:
“The club respectfully requests the FIFA Football Tribunal to:
(i)
All claims filed by the player are rejected.
In the event that the Tribunal disagrees:
(ii)
Order a total amount of 45.500,68 -EUR must be deducted from the player’s
receivables which is claimed by the player.
(iii)
Order the Claimant’s requests regarding the Appearance Bonus are rejected”.
c. Rejoinder of the player
17. On 25 August 2022, the player filed his rejoinder in this case.
18. Accordingly, the player acknowledged that the concepts claimed were undisputedly
outstanding. On the contrary, he mentioned that the club did only oppose the quantum
due based on the alleged deductions, to which the submitted his disagreement as follows:
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•
as to the fine imposed by the TFF: the club has never notified the player of
any disciplinary proceedings supposedly opened against him nor about the
fine imposed by the TFF as a consequence thereto. Therefore, “in the absence
of timely notification of the Claimant about the disciplinary proceedings and the
decision taken by TFF, the Respondent shall be solely and exclusively liable for
the payment of the relevant amount of fine to TFF”;
•
as to the fine imposed by the club: the player referred to art. 5, lit. i) of the
employment contract and argued that (i) the fine was not reasonable nor
proportional; (ii) no written request concerning the payment of the fine was
ever sent by the club; and (iii) his procedural rights were not respected. The
player referred to the jurisprudence of the Swiss Federal Tribunal (SFT) in
this regard. Likewise, he concluded that the deduction of such amounts was
only raised after the claim was lodged and the club’s argumentation to this
end should be rejected; and
•
as to the “miscellaneous debts” of the player towards the club: the player
confirmed his debt for an aggregate amount of EUR 3,904.84 and did not
object against the “set-off” of such amount from the remuneration to be
awarded.
19. Subsequently, the player insisted that the appearance bonus of EUR 150,000 should be
due by 31 May 2022 i.e. the date of expiration of the employment contract. He referred
to the Swiss Law in this respect and argued that “when the employment relationship ends,
all claims arising therefrom fall immediately due”.
20. With the above in mind, the player reiterated his requests for relief as per his statement
of claim, with the exception made to the set-off of EUR 3,904.84.
d. Final comments of the club
21. On 6 September 2022, the club submitted its final comments on this matter.
22. In this opportunity, the club firstly confirmed the player’s debt totalling EUR 3,904.84.
23. In continuation, the club referred to the fine imposed by the TFF and asserted that the
player was notified by its technical staff in person. Furthermore, it argued that: (i) the
disciplinary proceedings opened against the player were announced in the national news
and in TFF’s website; and (ii) the club’s exercise its right to defence on behalf of the player
before the TFF’s Disciplinary Committee, indeed being able to reduce the suspension and
fine.
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24. Lastly, the club insisted that the appearance bonus should only be due as stated in the
employment contract, therefore should be rejected.
25. Having established the above, the club repeated its prayers for relief.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
26. 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 19 July 2022 and submitted
for decision on 29 September 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.
27. 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 par.
1 lit. b) of the RSTP (July 2022 edition), the DRC is competent to deal with the matter at
stake, which concerns an employment-related dispute with an international dimension
between a Canadian player and a Turkish club.
28. 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 (July 2022 edition), and
considering that the present claim was lodged on 19 July 2022, the aforementioned
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
29. 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
30. 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
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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 the assessment of the matter at hand.
i. Main legal discussion and considerations
31. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact this is a claim for outstanding remuneration only,
corresponding to the player’s: (i) salary of May 2022 (EUR 165,000); (ii) appearance bonus
for the 2021/2022 season (EUR 150,000); and (iii) housing allowance for the months of
February, March, April, and May 2022 (EUR 3,000 each, thus EUR 12,000 in total).
32. In this context, the DRC acknowledged that it remained undisputed between the parties
that none of the abovementioned concepts were paid by the club to the player, but the
they strongly dispute whether they should be delivered in full bearing in mind the player’s
parallel alleged debts towards the club, and the disciplinary fines imposed by both the
TFF and the club in connection with the red card received by the player on 3 April 2022.
Consequently, the DRC determined that its task is limited to establishing the quantum
owed by the club to the player vis-à-vis the respective deductions, if any.
33. Having established the above and as a departure point, the Chamber noted that the
player acknowledged a debt towards the club amounting to EUR 3,904.84. Therefore, as
expressly agreed by the player, the Chamber decided that said amount should be
deducted from the player’s salary of May 2022.
34. Subsequently, the DRC moved to the analysis of the disciplinary fines. In this respect, the
latter found it decisive that, despite demonstrating that the player received a red card,
the club did not advance any evidence to demonstrate that: (i) any of the alleged
disciplinary proceedings were ever notified to the player; and (ii) the player had ever been
invited (either verbally or in written) to exercise his right to be heard or authorized the
club to act on its behalf. Furthermore, the Chamber also remarked that the club could not
demonstrate that it complied with the procedure established in the employment contract
and its own Disciplinary Regulations.
35. In light of the above, the Chamber recalled its well-established jurisprudence and decided
that the club’s position as to the disciplinary fines could not succeed.
36. It followed from the above, in the DRC’s view, that the player is entitled to the following
amounts on the basis of the general legal principle of pacta sunt servanda in combination
with the jurisprudence of the FIFA Football Tribunal:
a. EUR 161,095.16 net as the balance of the salary due on 31 May 2022 plus 5%
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interest p.a. as from 1 June 2022 until the date of effective payment;
b. EUR 150,000 net as outstanding appearance bonus due under Art. 6, lit. (C)
point (i) of the employment contract plus 5% interest p.a. as from 1 August
2022 until the date of effective payment; and
c. EUR 12,000 net as outstanding housing allowances for the months of
February 2022, March 2022, April 2022 and May 2022.
37. For the sake of completeness, the DRC was observant of the parties’ position as to the
due date of the appearance bonus. In this regard, the Chamber considered that such
amount undisputedly fell due during these proceedings and was not paid by the club. In
parallel and due to the specific (and clear) wording of article 7 of the employment
contract, the Chamber decided that interest of 5% p.a. should arise as from 1 August 2022
until the date of effective payment by the club.
38. Additionally, the DRC outlined that no interest was requested by the player over the
housing allowances, therefore it is not awarded in strict observance of the principle non
ultra petita.
39. In conclusion, the Chamber stressed that the claim of the player was partially accepted.
ii. Article 12bis of the Regulations
40. In continuation, the DRC referred to article 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 article 12bis
par. 4 of the Regulations.
41. To this end, the DRC confirmed that the player put the club in default of payment of the
amounts sought, which had fallen due form more than 30 days, and granted the club with
10 days to cure such breach of contract.
42. The DRC further established that by virtue of article 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 first 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.
43. In this connection, the DRC wished to highlight that a repeated offence will be considered
as an aggravating circumstance and lead to more severe penalty in accordance with
article 12bis par. 6 of the Regulations.
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iii. Compliance with monetary decisions
44. 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.
45. 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.
46. Therefore, bearing in mind the above, the DRC decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification
of the decision, failing which, at the request of the player, 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 club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
47. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the player in the Bank Account Registration Form, which is attached
to the present decision.
48. 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
49. 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.
50. 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.
51. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Cyle Larin, is partially accepted.
2.
The Respondent, Besiktas Futbol, has to pay to the Claimant the following amounts:
- EUR 161,095.16 net as outstanding remuneration plus 5% interest p.a. as from 1 June
2022 until the date of effective payment;
- EUR 150,000 net as outstanding remuneration plus 5% interest p.a. as from 1 August
2022 until the date of effective payment; and
- EUR 12,000 net as outstanding remuneration.
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
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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).
CONTACT INFORMATION
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