Labour Disputes
Texto da decisão
REF. FPSD-12633
Decision of the
Dispute Resolution Chamber
passed on 8 February 2024
regarding an employment-related dispute concerning
the player Aly Malle
BY:
Frans de Weger (the Netherlands), Chairperson
Stijn Boeykens (Belgium), member
André dos Santos Megale (Brazil), member
CLAIMANT:
Aly Malle, Mali
Represented by Mr Guy San Bartolome Sarrey
RESPONDENT:
Eyüpspor Kulübü Derneği, Türkiye
Represented by Mr Ercan Sevdimbaş
pg. 2
REF. FPSD-12633
I. Facts of the case
1. On 18 February 2023, the Malian player Aly Malle (hereinafter: Claimant or player) and
the Turkish club Eyüpspor Kulübü Dernegi (hereinafter: club or Respondent) concluded
an employment contract (hereinafter: the Contract) valid as from the date of signature
until 31 May 2025.
2. Pursuant to the Contract, the Respondent undertook to pay the Claimant “minimum
wage”.
3. On the same day, the Claimant and the Respondent signed an addendum (hereinafter:
the Addendum) in accordance with which the Respondent undertook to pay additional
remuneration to the Claimant as follows:
EUR 50,000 net signature bonus;
EUR 18,750 net monthly salary, payable each season in 10 equal instalments between
August and May of the respective season;
- EUR 500 accommodation allowance and a car;
- EUR 50,000 net appearance bonus for playing in 10 official matches.
FACTS AND DEFAULT NOTICES
4. On 18 February 2023, the Claimant and the Respondent signed the Contract and
Addendum. The Respondent paid the Claimant the signature bonus of EUR 50,000 net
on the same day.
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5. On the same day, the Claimant was loaned out to a third club, Ankara Keciörengücü until
31 May 2023.
6. On 15 July 2023, the Claimant contacted the Respondent via WhatsApp and stated that
he had not been reintegrated following his loan, and that if he was not desired at the
club, he would begin searching for a new club.
7. On 19 July 2023, the Claimant sent a warning to the Respondent, stating that he wished
to be reintegrated and invited to the pre-season training camp, and that failing to do so
constituted a breach of contract. No formal deadline was granted.
8. On 3 August 2023, the Claimant sent a further warning letter, requesting reintegration
into training as well as EUR 500 corresponding to his last due car allowance payment
which had not been remitted. No formal deadline was granted.
9. 31 August 2023, the Claimant sent a third warning letter, after the previous two remained
unanswered, stating that he had still not been reintegrated into training, as well as not
paid EUR 2,000 – corresponding to accommodation and car allowance for July 2023 and
August 2023. No formal deadline was granted.
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REF. FPSD-12633
10. On 8 September 2023, the Claimant sent a further warning letter, requesting “without
delay” payment of the salary for August 2023, in the amount of EUR 18,750 net, as well
as EUR 3,000, purportedly corresponding to the accommodation and car allowance of
July 2023 – September 2023 (sic).
11. On 18 September 2023, the Respondent contacted the Claimant via WhatsApp and
informed him that it would “find him a new club” and that he would train separately to
the squad in the meantime.
12. On 25 September 2023, the Claimant sent a further default notice, as well as requesting
the same amounts as before, plus EUR 1,000 in addition, corresponding to the
accommodation and “car allowance” due for October 2023 (sic). Once again, no formal
deadline was granted.
13. On 20 October 2023, the Respondent sent the Claimant an empty mutual termination
agreement in which it undertook to pay him EUR 120,000 in three separate instalments.
14. On 24 October 2023, the Claimant once again put the Respondent in default, for three
monthly salaries (August 2023 – October 2023), as well as four separate accommodation
and “car allowances” of EUR 1,000 each. No deadline was granted. The Claimant lastly
alleged that, pursuant to information he found on the platform transfermarkt.com, he
was not registered by the Respondent for the season, in order to be eligible to play.
15. On 25 October 2023, the Respondent messaged the Claimant’s legal representative on
WhatsApp, stating that the Claimant had initially accepted the offer to settle send on
20 October 2023, but subsequently changed his mind as he was advised by his lawyer to
ask for better financial terms. The Respondent asked the representative to provide an
adequate figure, to which the Claimant’s representative retorted that the Claimant had
no interest in signing any mutual termination.
16. On 8 November 2023, the Claimant unilaterally terminated the Contract.
17. On 1 January 2024, the Claimant signed an employment contract with the Romanian club
Otelul Galati (hereinafter: the New Club) valid as from the date of signature until
30 June 2023 (hereinafter: the New Contract).
18. In accordance with the New Contract, the New Club undertook to pay the Claimant a
monthly salary of EUR 6,000 net.
pg. 4
REF. FPSD-12633
II. Proceedings before FIFA
19. On 13 November 2023, 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
20. In his claim, the player argued that he had not been paid in excess of three monthly salaries
pursuant to the Contract and Addendum, and excluded from training for a considerable
period of time, in spite of several default notices and written warnings sent to the
Respondent.
21. The Claimant also emphasised that he never agreed to a mutual termination agreement
and insisted on claiming for compensation before FIFA.
22. The Claimant requested outstanding remuneration and compensation as follows:
- EUR 58,250 net outstanding remuneration, corresponding to three salaries and four
monthly accommodation allowances of EUR 500 each (sic);
- EUR 327,750 net as compensation (or 17 monthly salaries and accommodation
allowances between November 2023 and May 2025);
- EUR 112,500 net as additional compensation due to egregious circumstances, if
applicable;
- Interest as from the respective due dates.
b. Position of the Respondent
23. In its reply, the Respondent acknowledged the non-payment of the salaries and
accommodation allowance.
24. The Respondent argued, however, that the Claimant should only be entitled to receive the
outstanding amounts, and no compensation, purporting that he never terminated the
Contract.
25. The Respondent argued that, in case it is found that the Claimant did, in fact, terminate the
Contract formally, compensation should be limited to a maximum of EUR 300,000, and
reduced further on account of the fact that, despite remaining unemployed, the Claimant
is likely to find a new club given that the transfer window is less than a month away at the
time of the present claim.
pg. 5
REF. FPSD-12633
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 13 November 2023 and
submitted for decision on 8 February 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.
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 lit. b) of the
Regulations on the Status and Transfer of Players May 2023 edition), the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Malian 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 (May 2023 edition), and
considering that the present claim was lodged on 13 November 2023, the May 2023 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
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.
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REF. FPSD-12633
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 that the parties strongly dispute the lawfulness of the
contractual termination by the Claimant.
32. In this context, the Chamber acknowledged that its task was to determine whether, based
on the evidence on file, the Respondent had defaulted on the payments in dispute with a
valid justification, behaved abusively towards the Claimant as alleged, and, by
consequence, whether this gave rise to just cause by the Claimant to terminate the
Contract prior to the contractual term.
33. Prior to assessing the matter at hand, the Chamber wished to recall the parties’ arguments,
beginning with the Claimant, according to whom just cause to terminate the Contract
prematurely had arisen on account of the Respondent’s failure to remit in excess of three
monthly salaries and failure to properly reintegrate him following his loan to a third club.
34. On the other hand, the Respondent had argued that the Claimant never formally
terminated the Contract, which would absolve it from the duty to remit the acknowledged
debts. The other arguments of the Claimant remained uncontested.
35. The Chamber, at this stage, wished to refer to its own jurisprudence, pursuant to which a
party that wishes to rely on a purported fact also bears the burden of proving its veracity
with corroborating evidence.
36. With this in mind, the Chamber moved on to analyse the matter at hand as to its merits.
The Chamber hereby emphasised that the payments in dispute – in excess of three
monthly salaries – not only remained uncontested by the Respondent, but the Claimant
also provided evidence of having put the Respondent in default and granted a deadline of
at least 15 days to remedy the breach of contract.
37. The Chamber deemed it important to emphasise that – contrary to the Respondent’s
allegation – the Claimant had formally and demonstrably terminated the Contract, with the
relevant termination notice and proof of remittance having been included on file.
38. As a result thereof, and considering that the formal requirements of art. 14bis of the
Regulations were met in the case at hand, the Chamber was able to conclude that the
Claimant had a just cause to terminate the Contract prematurely in the case at hand, due
to the Respondent’s breach thereof.
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REF. FPSD-12633
ii. Consequences
39. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
40. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to three salaries
and four monthly accommodation allowances under the Contract and relevant Addendum,
amounting to EUR 58,250 net.
41. 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
which were outstanding under the contract at the moment of the termination, i.e.
EUR 58,250 net (i.e. three times EUR 18,750 net plus four times EUR 500 net).
42. 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 their respective due dates until the date of
effective payment, as follows:
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On the amount of EUR 500 net, as from 1 August 2023 until the date of effective
payment;
On the amount of EUR 19,250 net, as from 1 September 2023 until the date of
effective payment;
On the amount of EUR 19,250 net, as from 1 October 2023 until the date of effective
payment;
On the amount of EUR 19,250 net, as from 1 November 2023 until the date of
effective payment
43. 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.
44. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to 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
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REF. FPSD-12633
contractual parties in the event of breach of contract. In this regard, the Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
45. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
46. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of EUR 328,500 (i.e. the residual value of the Contract, or 17 x
EUR 18,750 plus 19 x EUR 500 between November 2023 and May 2025 – with June and July
excluded for salary payments, per the wording of the Contract and Addendum) serves as
the basis for the determination of the amount of compensation for breach of contract.
47. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
48. Indeed, the player found employment with the New Club. In accordance with the pertinent
employment contract, the player was entitled to approximately EUR 6,000 net per month.
Therefore, the Chamber concluded that the player mitigated his damages in the total
amount of EUR 36,000 net, that is, six times EUR 6,000.
49. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason i.e. overdue payables by the club, and therefore
decided that the player shall receive additional compensation.
50. In this respect, the DRC opined that the amount of additional compensation to which the
Claimant is entitled corresponds to EUR 56,250, i.e. three times the monthly remuneration
of the player. Equally, however, the Chamber recalled the wording of art. 17 par. 1 lit. ii,
pursuant to which the compensation awarded to a player may never exceed the residual
value of a prematurely terminated contract.
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REF. FPSD-12633
51. Consequently, the Chamber established that the additional compensation to which the
Claimant is entitled shall be limited to the mitigated amount of EUR 36,000 net.
52. Based on all the above, the Chamber concluded that the Claimant would be entitled to
receive – in principle – a total amount of compensation of EUR 328,250 net – i.e. the residual
value of the Contract, with the relevant Addendum. Equally, however, the Chamber recalled
that the Claimant had limited his request to an amount of EUR 327,750 net.
53. Thus, in accordance with the principle of ne iudex eat ultra petita partium, the Chamber
decided that the maximum amount of compensation that could be awarded to the
Claimant was EUR 327,750 net.
54. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of EUR 327,750 net to the player (i.e. EUR 328,250 net minus EUR 36,000 net plus
EUR 36,000 net, limited to EUR 327,750 net), which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
55. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 9 November 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
56. 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.
57. 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.
58. 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.
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REF. FPSD-12633
59. 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.
60. 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
61. 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.
62. 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.
63. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 11
REF. FPSD-12633
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Aly Malle, is partially accepted.
2.
The Respondent, Eyüpspor Kulübü Derneği, must pay to the Claimant the following
amount(s):
- EUR 58,250 net as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount of EUR 500 net as from 1 August 2023 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 19,250 net as from 1 September 2023 until the
date of effective payment;
- 5% interest p.a. over the amount of EUR 19,250 net as from 1 October 2023 until the
date of effective payment;
- 5% interest p.a. over the amount of EUR 19,250 net as from 1 November 2023 until the
date of effective payment.
- EUR 327,750 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 9 November 2023 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.
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.
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REF. FPSD-12633
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-12633
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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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pg. 14