DRC Overdue Payables
Texto da decisão
REF FPSD-7103
Decision of the
Dispute Resolution Chamber
passed on 24 October 2022
regarding an employment-related dispute concerning the player Aly
Malle
BY:
Daan de Jong (the Netherlands)
CLAIMANT:
Aly Malle, Mali
Represented by Mr Guy San Bartolome Sarrey
RESPONDENT:
Buyuksehir Belediye Erzurumspor, Türkiye
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I. Facts of the case
1.
On 9 September 2021, the Malian player, Aly Malle (hereinafter: the Claimant), the Turkish
club, Buyuksehir Belediye Erzurumspor (hereinafter: the Respondent) and the Turkish club
Yeni Malatyaspor entered a tripartite agreement (hereinafter: the Contract) for the loan of
the Claimant from Yeni Malatyaspor to the Respondent between 8 September 2021 and
31 May 2022.
2.
In accordance with the Contract, the Respondent undertook to pay to the Claimant a total
remuneration of EUR 135,000, payable in 9 monthly instalments of EUR 15,000 each
between September 2021 and May 2022.
3.
By correspondence dated 14 June 2022, the Claimant put the Respondent in default of
payment of EUR 15,000, setting a time limit expiring on 30 June 2022 for the latter to
remedy the default.
4.
On 18 July 2022, the Claimant put the Respondent in default of payment of EUR 15,000
for a second time, granting a deadline of 11 days to remedy the alleged default.
II. Proceedings before FIFA
5.
On 17 August 2022, 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
6.
According to the Claimant, the Respondent failed to comply with its financial obligations
under the Contract by not paying the final salary instalment corresponding to the month
of May 2022, despite putting the latter in default twice and granting a deadline in each
respective case of more than 10 days to rectify the alleged breach.
7.
Thus, in accordance with art. 12bis of the Regulations on the Status and Transfer of
Players, the Claimant requested payment of EUR 15,000, as well as interest of 5% p.a. as
from 1 June 2022 until the date of effective payment.
b. Position of the Respondent
8.
In its reply, with regards to the substance of the matter at hand, the Respondent briefly
acknowledged the debt of EUR 15,000, arguing that the effects of COVID-19, which should
be held to constitute a case of force majeure, have impeded its ability to make the disputed
payment. Thus, the Respondent requested for the claim to be rejected.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
9.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether he was competent to deal with the case at hand. In
this respect, he took note that the present matter was presented to FIFA on
17 August 2022 and submitted for decision on 24 October 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.
10. Subsequently, the Single Judge 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 (July 2022 edition), the Single Judge is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Malian player and a Turkish club.
11. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he 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 17 August 2022, the July 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
12. The Single Judge 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, he stressed the
wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
13. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, he started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
the Single Judge emphasised that in the following considerations he will refer only to the
facts, arguments and documentary evidence, which he considered pertinent for the
assessment of the matter at hand.
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i. Main legal discussion and considerations
14. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the Respondent acknowledged not having paid the
final instalment to the Claimant under the Contract, in the amount of EUR 15,000.
15. Equally, the Single Judge took into consideration the line of argument submitted by the
Respondent, that, on account of the force majeure nature of COVID-19, and the resulting
lack of income by way of broadcasting monies, it was unable to comply with the terms of
the Contract and pay the final instalment.
16. In this context, the Single Judge, first of all, wished to highlight that FIFA issued a set of
guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance and
recommendations to member associations and their stakeholders, to both mitigate the
consequences of disruptions caused by COVID-19 and ensure that any response is
harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an
additional document, referred to as FIFA COVID-19 FAQ, which provides clarifications on
the most relevant questions in connection with the regulatory consequences of the
COVID-19 outbreak and identifies solutions for new regulatory matters.
17. As to the concept of force majeure, the Single Judge also pointed out that, based on the
contents of the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ, FIFA did not declare
that the COVID-19 outbreak was a force majeure situation in any specific country or
territory, or that any specific employment or transfer agreement was impacted by the
concept of force majeure. In other words, in any given dispute, it is for a party invoking
force majeure to establish the existence of said event under the applicable law/rules as
well as the consequences that derive in connection thereto. The analysis of whether a
situation of force majeure existed has to be considered on a case-by-case basis, taking into
account all the relevant circumstances.
18. Following these general observations, the Single Judge pointed out that the Respondent
failed to submit any evidence corroborating the claim of force majeure as a result of
COVID-19, which purportedly prevented the latter from making the payments due to the
Claimant under the Contract.
19. Consequently, the Single Judge concluded that, as no situation of force majeure could be
established in the present matter, the Respondent is held to comply with the contractually
agreed upon payments.
20. In view of the foregoing, and bearing in mind the general legal principle of pacta sunt
servanda, which in essence means that agreements must be respected by the parties in
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good faith, the Respondent is held liable to pay the Claimant the outstanding amounts
deriving from the Contract concluded between the parties, namely EUR 15,000.
ii. Consequences
21. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
22. In this respect, the Single Judge recalled that the amount claimed by the Claimant, i.e.,
EUR 15,000, was confirmed as having remained unpaid without valid justification.
23. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Single Judge decided that the Respondent is liable to pay the Claimant the
amount claimed as outstanding under the Contract, namely EUR 15,000.
24. In addition, taking into account the Claimant’s request as well as the constant practice of
the Single Judge in this regard, the latter decided to award the Claimant interest at the
rate of 5% p.a. on the outstanding amount as from 1 June 2022 until the date of effective
payment.
iii. Art. 12bis of the Regulations
25. In continuation, the Single Judge 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 basis may be sanctioned in accordance with art. 12bis par. 4 of the
Regulations.
26. To this end, the Single Judge confirmed that the Claimant put the Respondent in default
of payment of the amounts sought on 18 July 2022, and that the disputed amount had
been overdue for more than 30 days. Moreover, the Single Judge confirmed that the
Claimant granted the Respondent an 11-day deadline to cure such breach.
27. Accordingly, it was established that the Respondent had delayed a due payment without
a prima facie contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations were met in the case at hand.
28. The Single Judge further established that, by virtue of art. 12bis par. 4 of the Regulations,
he had the competence to impose sanctions on the Respondent. On account of the above
and bearing in mind that this was the 7th offence of the Respondent within the last two
years (1st offence: FPSD-2612, notified on 14 July 2021; 2nd offence: FPSD-3040, notified on
18 August 2021; 3rd offence: FPSD-2872, notified on 8 October 2021; 4th offence:
FPSD-3419/3340, notified on 13 October 2021; 5th offence: FPSD-4138, notified on
21 January 2022; 6th offence: FPSD-5258, notified on 19 April 2022), the Single Judge
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decided to impose a fine in the amount of USD 6,000 in accordance with art. 12bis par. 4
lit. c) of the Regulations.
29. In this connection, the Single Judge wished to point out 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.
iv. Compliance with monetary decisions
30. Finally, taking into account the applicable Regulations, the Single Judge 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.
31. In this regard, the Single Judge 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.
32. Therefore, bearing in mind the above, the Single Judge 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.
33. 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.
34. The Single Judge 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
35. The Single Judge 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, he decided that no procedural costs were to be
imposed on the parties.
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36. Likewise and for the sake of completeness, the Single Judge recalled the contents of
art. 25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall
be awarded in these proceedings.
37. Lastly, the Single Judge 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, Aly Malle, is accepted.
2.
The Respondent, Buyuksehir Belediye Erzurumspor, has to pay to the Claimant EUR
15,000 as outstanding remuneration plus interest of 5% p.a. as from 1 June 2022 until the
date of effective payment.
3.
The Respondent is ordered to pay a fine of USD 6,000 to FIFA within 30 days as from the
notification of this decision to the following bank account, with clear reference to the case
FPSD-7103:
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
▪
4.
Full payment of the amounts in point 2. (including all applicable interest) shall be made to
the bank account indicated in the enclosed Bank Account Registration Form.
5.
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 the ban
shall be of 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 article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
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7. 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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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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