DRC Overdue Payables
Texto da decisão
REF. FPSD-16516
Decision of the
Dispute Resolution Chamber
passed on 16 January 2025
regarding an employment-related dispute concerning the player
José Luis Mendes de Andrade
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Dana MOHAMED AL-NOAIMI (Qatar), Member
Michele COLUCCI (Italy), Member
CLAIMANT:
José Luis Mendes de Andrade, Cape Verde Islands
Represented by Joao Filipe Lobao
RESPONDENT:
Atakas Hatayspor, Türkiye
Represented by Ismail Coskun
pg. 2
REF. FPSD-16516
I. Facts of the case
1.
On 7 September 2022, the player from the Cape Verde Islands, José Luis Mendes De
Andrade, (hereinafter: the Claimant or the Player) and the Turkish club Atakas Hatayspor
(hereinafter: the Respondent or the Club) concluded an employment contract (hereinafter:
the Contract) valid as from its date of signature until 31 May 2023.
2.
In accordance with the Contract, the Respondent undertook to pay the Claimant EUR
630,000, corresponding to a signing bonus of EUR 150,000 due on 7 September 2022, and
9 monthly salaries of EUR 53,333 to be paid on the last day of each month.
3.
In addition, article 3.1 of the Contract stipulated that all amounts determined on it are net
and that the Club is liable to pay withholding taxes.
4.
Lastly, article 27 of the Contract reads as follows:
“If the competitions are suspended or postponed by an authorized body (such as the
government of the Republic of Turkey, FIFA, UEFA or TFF), only the minimum wage will
be paid to the player during the postponement / suspension period. In such a case,
the contract will automatically extend until the end of the competitions within the
scope of TFF Instructions. If the matches are completed after the postponement /
suspension period, the Club will pay the monthly fees to the Player. The Player
acknowledges and undertakes that the failure of the club to make the balance
payments for this interrupted period cannot be used by him as a justified termination
reason. The club reserves the right to make a reduction in fees within the scope of
damages incurred due to postponement / suspension due to postponement /
suspension. In such a case, the parties will agree on the discount amount / rate. In the
event of the cancellation of the league, the fees will be paid on a pro rata basis, taking
into account the matches actually played.”
5.
On 6 February 2023, an earthquake occurred in Türkiye.
6.
By correspondence dated 26 September 2023, the Claimant put the Respondent in default
and requested payment within 10 days of EUR 319,998, corresponding to the monthly
salaries from December 2022 to May 2023.
7.
On 13 October 2023, the Club paid the Player EUR 117,332.60.
II. Proceedings before FIFA
8.
On 9 October 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
pg. 3
REF. FPSD-16516
a. Position of the Claimant
9.
According to the Claimant, he is entitled to outstanding remuneration in the amount of
EUR 202,665.40 corresponding to the unpaid salaries of the Contract
10. Considering the foregoing, the Claimant requested the following:
“€42.666,40 (forty two [sic] thousand six hundred and sixty six euros and forty cents)
regarding the salary of February 2023 (which should have been be paid no later than
28th February 2023);
€53.333,00 (fifty three [sic] thousand and three hundred and thirty three euros
net)regarding the salary of March 2023 (which should have been be paid no later than
31st March 2023)
€53.333,00 (fifty three [sic] thousand and three hundred and thirty three euros
net)regarding the salary of April 2023 (which should have been be paid no later than
30th April 2023)
€53.333,00 (fifty three [sic] thousand and three hundred and thirty three euros net)
regarding the salary of May 2023 (which should have been paid no later than 31st
May 2023);
The Club is ordered to pay the net plus 5% interest overdue €202.665,4 (two hundred
and two thousand six hundred and sixty five euros and forty cents) as of the payment
dates defined in I but also from the outstanding amounts of salaries corresponding to
salary of the month of December (which should have been be paid no later than 31st
December 2022), January 2023 (which should have been be paid no later than 31st
January 2023) and €10.666,6 regarding the salary of February 2023 (which should
have been be paid no later than 28th February 2023) which were only paid on
13.10.2023.
The Decision shall be executed in accordance with Art. 24 bis FIFA RSTP and also
include a decision about the consequences of the Club failure to pay the amounts
according to request for relief no. I and II.”
b. Position of the Respondent
11. In its reply, the Respondent argued that the earthquake in Türkiye on 6 February 2023 had
placed it in a difficult financial situation. In this regard, the Club referred to the force
majeure clause inserted in the Contract and that therefore, it is exempted from its
obligations in the season 2022-2023 pursuant to the declaration of the Turkish Football
Federation.
pg. 4
REF. FPSD-16516
12. In addition, the Club noted that, after the earthquake, the Player did not fulfil his
obligations under the Contract, such as participating in training and matches, and did not
request a temporary or permanent transfer to another club or to mutually terminate the
Contract. Therefore, it is the position of the Club that it would be unfair to accept the
Player’s claim in its entirety while he did not fulfil his obligations pursuant to the Contract.
13. On account of the above, the requests for relief of the Respondent were the following:
“Dismiss the case on the grounds that the Player's principal amount and 5% interest
claims cannot be accepted in accordance with the contract signed between the Parties,
that any payment shall only be made until 06.02.2023, when force majeure occurred,
and that the payment was made to the Player by the Club.
Provided that it does not mean acceptance, if you decide to the contrary of our above
explanations, we request a decision to make an equitable reduction.
The Player's request for the application of Art.24 bis FIFA RSTP should be rejected.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the 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 9 October 2024 and submitted for decision
on 16 January 2025. Taking into account the wording of art. 34 of the January 2025 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.
15. 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 (January 2025 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 a player from the
Cape Verde Islands and a Turkish club.
16. 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. 29 of the
Regulations on the Status and Transfer of Players, the January 2025 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
pg. 5
REF. FPSD-16516
b. Burden of proof
17. 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
18. 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.
i. Main legal discussion and considerations
19. The Chamber then moved to the substance of the matter, and took note of the fact that
the parties strongly dispute the payment of financial obligations in the amount of EUR
202,665.40 by the Respondent as per the Contract.
20. In this context, the Chamber noted that neither party contested the non-payment of the
amounts claimed by the Claimant. Therefore, the Chamber acknowledged that its task was
to determine, based on the evidence presented by the parties whether the Respondent
had a valid justification for not having complied with its financial obligations.
21. The Chamber took note of the Respondent’s argumentation that the salaries owed to the
Claimant remained unpaid due to financial difficulties caused by the earthquake and the
triggering of article 27 of the Contract which exempted the Respondent from its financial
obligations.
22. In this respect, the Chamber determined that the Respondent had failed to adequately
corroborate its inability to pay the contractually stipulated amounts as a result of any
alleged financial difficulties. In this respect, the Chamber recalled the well-established
jurisprudence of the Football Tribunal which establishes that financial difficulties per se do
not constitute a valid reason to justify the failure to fulfil contractual obligations.
23. In addition, the Chamber considered the fact that on 13 October 2023, the Club paid the
Player EUR 117,332.60, quite some time after the events causing such purported state of
pg. 6
REF. FPSD-16516
force majeure had taken place, which in turn suggested that the Respondent could have
anticipated its inability to comply with the financial obligations agreed therein.
24. For the sake of completeness, the Chamber determined, based on the evidence on file, that
article 27 of the Contract was not applicable to the present case, as it concerns the situation
of suspension and postponement of competitions while in this case the Respondent
appears to have withdrawn from the championship.
25. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda,
which in essence means that agreements must be respected by the parties in good faith,
the Chamber decided that the Respondent is held liable to pay the Claimant the
outstanding amount deriving from the Contract concluded between the parties, namely
EUR 202,665.40, plus 5% interest p.a. as follows:
-
5% interest p.a. over the amount of EUR 42,666.40 as from 1 March 2023 until
the date of effective payment.
-
5% interest p.a. over the amount of EUR 53,333 as from 1 April 2023 until the
date of effective payment.
-
5% interest p.a. over the amount of EUR 53,333 as from 1 May 2023 until the
date of effective payment.
-
5% interest p.a. over the amount of EUR 53,333 as from 1 June 2023 until the
date of effective payment.
26. In addition, the Chamber took note of the Claimant’s request and decided to award him
EUR 4,064.99, corresponding to outstanding interests, as detailed below:
-
EUR 2,089.48 corresponding to 5% interest p.a. over the amount of EUR
53,333, corresponding to the monthly salary of December 2022, as from 1
January 2023 until 13 October 2023, i.e. the date the Club remitted EUR
117,332.60 to the Player.
-
EUR 1,643.82 corresponding to 5% interest p.a. over the amount of EUR
53,333, corresponding to the monthly salary of January 2023, as from 1
February 2023 until 13 October 2023, i.e. the date the Club remitted EUR
117,332.60 to the Player.
-
EUR 331.69 corresponding to 5% interest p.a. over the amount of EUR
10,666,60 corresponding to the monthly salary of February 2022, as from 1
March 2023 until 13 October 2023, i.e. the date the Club remitted EUR
117,332.60 to the Player.
pg. 7
REF. FPSD-16516
ii. Art. 12bis of the Regulations
27. 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.
28. 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.
29. Accordingly, the Chamber confirmed that the Club had delayed a due payment without a
prima facie contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
30. 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 first offense by the Club in 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.
31. 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.
iii. Compliance with monetary decisions
32. 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. In this regard, the Chamber highlighted that, against clubs, the
consequence of the failure to pay the relevant amounts in due time shall consist, in
principle, of a ban from registering any new players, either nationally or internationally, up
until the due amounts are paid.
33. Notwithstanding the above, the Chamber wished to remark that in accordance with art. 24
par. 3 of the Regulations, the aforementioned consequences may be excluded where the
pertinent FIFA deciding body has already imposed on the same party a sporting sanction
on the basis of article 12bis, 17 or 18quater of the Regulations.
34. In this respect, the Chamber recalled that by means of a decision of the Football Tribunal
passed on 29 August 2024 and notified on 13 September 2024, a transfer ban has been
imposed on the Respondent pursuant to art. 17 par. 4 of the Regulations, namely in the
case FPSD-15136.
pg. 8
REF. FPSD-16516
35. Accordingly, the Chamber established that in casu art. 24 par. 2 of the Regulations shall not
apply, insofar as in case the Respondent fails to comply with the decision at hand, the
application of a further ban from registering any new players on top of the one already
being served by the Respondent would be moot and against the spirit of the Regulations,
in particularly the enforcement mechanism established under art. 24 of the Regulations.
36. In view of the above, the Chamber decided that if the aforementioned sum plus interest is
not paid within 30 days of notification of this decision, the present matter shall be
submitted, upon request of the Claimant, to the FIFA Disciplinary Committee for its
consideration and formal decision.
37. 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.
d. Costs
38. 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.
39. 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.
40. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 9
REF. FPSD-16516
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, José Luis Mendes de Andrade, is accepted.
2.
The Respondent, Atakas Hatayspor, must pay to the Claimant the following amounts:
- EUR 202,665.40 as outstanding remuneration plus 5% interest p.a. as follows:
- 5% interest p.a. over the amount of EUR 42,666.40 as from 1 March 2023 until the date
of effective payment;
- 5% interest p.a. over the amount of EUR 53,333 as from 1 April 2023 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 53,333 as from 1 May 2023 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 53,333 as from 1 June 2023 until the date of
effective payment.
- EUR 4,064.99 as interests.
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.
If full payment (including all applicable interest) is not made within 30 days of notification
of this decision, the present matter shall be submitted, upon request of the Claimant, to
the FIFA Disciplinary Committee.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 10
REF. FPSD-16516
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