Dispute Resolution Chamber
Texto da decisão
REF 20-01653
Decision of the
DRC Judge
passed on 11 May 2021
regarding an employment-related dispute concerning the player Ridge Munsy
BY:
Jon Newman (USA), DRC Judge
CLAIMANT:
Ridge Munsy, Switzerland
Represented by Marco del Fabro
RESPONDENT:
Buyuksehir Belediye Erzurumspor, Turkey
Represented by Luis Cassiano Neves & Matilde Costa Dias
Page 2 of 9
REF 20-01653
I. Facts
1.
As a preliminary issue, it must be noted that, during 2019, the parties were engaged in
proceedings under the Dispute Resolution Chamber, case ref no. 19-02133 relating to an
employment related dispute which arose between the Swiss player, Ridge Munsy (hereinafter:
the player or the Claimant), and the Turkish club, Buyuksehir Belediye Erzurumspor (hereinafter:
the club or the Respondent).
2.
The said proceedings was initiated on 12 November 2019, by the Claimant, claiming from the
Respondent the total amount of EUR 137,000, corresponding to outstanding salaries in respect
of an employment contract concluded between the parties valid from 9 August 2018 to 31 May
2019.
3.
During the course of the proceedings under ref no. 19-02133, the Respondent indicated that it
faced significant financial challenges but expressed that it would comply with its financial
obligations, and therefore proposed to pay the outstanding salaries due to the Claimant by means
of instalments. The Claimant expressed his willingness to accept the proposal.
4.
In this context, the Claimant and Respondent reached a settlement agreement (hereinafter: ‘the
agreement’).
5.
Based on the agreement, the parties agreed to suspend the proceedings under ref no. 19-02133
on the condition that the Respondent strictly abides by the terms and conditions set forth in the
agreement.
6.
In view of the aforementioned, the Claimant informed FIFA about the agreement concluded
between the parties and, consequently, the said proceedings under ref no. 19-02133 were
closed.
7.
According to clause 1 of the agreement, the Claimant and the Respondent agreed to finalise all
pending proceedings under case ref no. 19-02133 and in this regard agreed to a settlement
compensation in the amount of EUR 137,000, to be paid by the Respondent to the Claimant as
follows:
(i)
(ii)
(iii)
8.
EUR 47,000 by no later than 24 December 2019 (first instalment) ;
EUR 45,000 by no later than 29 February 2020 (second instalment) ; and
EUR 45,000 by no later than 30 March 2020 (third instalment)
Furthermore, clause 2 of the agreement stipulated the following:
“Once payment of the amount provided for in Clause One, paragraph 1(i) is completed, the
Parties shall jointly request before the FIFA Dispute Resolution Chamber the suspension of
procedure 19-02133 until 15 April 2020.
Page 3 of 9
REF 20-01653
If the Defendant is in default in relation to any of the instalments set forth in Clause One,
paragraph 1 above for more than 10 (ten) days, this Settlement Agreement shall become null
and void, and the Claimant shall be entitled to request the .immediate withdrawal of the
suspension and the immediate resuming of procedure 19-02133.”
9.
Moreover, clause 4 of the agreement stipulated the following:
“Once the terms and conditions of the Settlement Agreement are fully settled, the Parties shall
be reciprocally discharged of all obligations, duties and commitments towards one another and
shall have no claim against each other in connection with the employment agreement entered
into on 9 August 2018 and procedure 19-02133.”
10. According to the Claimant, on 19 December 2019, the Respondent submitted the agreement to
FIFA. What is more, the Claimant confirmed by his letter dated 15 January 2020 that the first
instalment was paid by the Respondent and agreed that the proceedings may be suspended.
11. Additionally, the Claimant indicated in the aforesaid letter that:
“the Parties will inform the Chamber whether Respondent paid all the instalments and the
Settlement Agreement became final and binding or whether the mentioned Agreement became
null and void (due to default). In the latter case Claimant will request withdrawal of the
suspension without delay and the immediate resuming of the present procedure.”
12. In the present claim, the Claimant indicated that the Respondent had failed to pay the third
instalment and only made a partial payment at the end of June 2020, in the amount of EUR
5,000, however no further payment was remitted by the Respondent.
13. According to the Claimant, the agreement became null and void and the “Claimant is entitled to
request the immediate withdrawal of the suspension and the immediate resuming of the
procedures under ref. 19-02133.”
14. On 12 November 2020, the Claimant lodged a claim against the Respondent before FIFA,
requesting the outstanding amount of EUR 40,000, which amount corresponds to the
outstanding balance of the amount agreed to under the agreement and accordingly requested
“to resume, continue and conclude procedure 19-02133 with a decision.”
15. In its reply to the claim, the Respondent indicated that on 6 March 2020, the Respondent was
informed by FIFA “due to the amicable solution found between them, FIFA services would no
longer be needed within the context of proceedings no. 19-02133, and therefore, it proceeded
with the closure of the file.”
16. Accordingly, the Respondent indicated that the Claimant’s request to “resume proceedings no.
19-02133” is simply not possible and shall be rejected outright.
Page 4 of 9
REF 20-01653
17. The Respondent further indicated the following:
“if FIFA considers that the Claimant’s letter is a proper claim, under Article 9 of the Procedural
Rule, adequate to initiate the new proceedings nr. 20-01653 quod non, it shall nevertheless abide
by the principle of non ultra petita, according to which the judge cannot rule beyond the
Claimant’s request for relief, at the risk of infringing such principle. Pursuant to such principle,
not only is the judge bound to observe the limits of the parties’ motions, but it is also relevant to
highlight that “a party may not be awarded anything more than or different from what it has
requested, nor less than what the opposing party has acknowledged”2. This effectively means
that, in the present case, this Chamber has to abide by the request for relief contained in the
Player’s claim, which is to resume the proceedings nr. 19-02133, and nothing else.”
18. In conclusion, the Respondent requested that the Chamber declare the claim as inadmissible on
the basis that the Claimant’s letter lacks a possible and tangible request for relief.
II. Considerations of the Dispute Resolution Chamber Judge
1.
First of all, the Dispute Resolution Chamber judge (hereinafter also referred to as DRC judge)
analysed whether he was competent to deal with the case at hand. In this respect, he took note
that the present matter was submitted to FIFA on 12 November 2020 and submitted for decision
on 11 May 2021. Taking into account the wording of art. 21 of the January 2021 edition of the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules
is applicable to the matter at hand.
2.
Subsequently, the DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed
that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations
on the Status and Transfer of Players, the DRC judge is competent to deal with the matter at
stake, which concerns an employment–related dispute with an international dimension between
a Swiss player and a Turkish club.
3.
In continuation, the DRC judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, the DRC judge confirmed that in accordance with art.
26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (February 2021 edition),
and considering that the claim was lodged on 12 November 2020, the October 2020 edition of
the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been established, the
DRC judge entered into the substance of the matter. In this respect, the DC judge started by
acknowledging all the above-mentioned facts as well as the arguments and the documentation
submitted by the parties. However, the DRC judge 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.
Page 5 of 9
REF 20-01653
5.
Having said that, the DRC judge acknowledged that the Claimant is requesting outstanding
balance of third instalment as per the settlement agreement concluded with the Respondent
following the initiation of previous proceedings under case ref no. 19-02133.
6.
In this respect, the DRC judge observed that, as acknowledged by both parties, the proceedings
ended upon receipt of a notification from the Claimant, whereby the latter communicated to the
FIFA that the parties had reached a settlement to the dispute.
7.
As to the settlement agreement, the DRC judge concluded that, the Claimant indicated that the
Respondent undertook to pay to him the amount of EUR 137,000, and that the Respondent
failed to pay (in full) the last instalment of the settlement agreement.
8.
Entering into the substance of the matter at hand, the DRC judge noted that based on clauses 2
and 4 of the settlement agreement, the Respondent would only be discharged of its obligations
under the agreement once the amount agreed upon is fully settled. What is more, in case of noncompliance with the settlement agreement, the Claimant would be entitled to immediately
request that the proceedings under the initial case ref. no. 19-02133 be resumed.
9.
The DRC judge observed that the Respondent in its reply argued that the claim as lodged by the
Claimant should be declared inadmissible, on the basis that it lacks a possible and tangible
request for relief, as it is impossible to resume proceedings under case ref.no. 19-02133.
10. However, the DRC judge wished to point out that the Respondent did not contest the nonpayment of the amount of EUR 40,000 as per the settlement agreement and/or the contract
concluded between the parties. It therefore appears undisputed that an amount of EUR 40,000
remained outstanding.
11. Furthermore, the DRC judge noted that the relief sought by the Claimant, i.e. to be awarded an
amount of EUR 40,000, which corresponds to the outstanding balance under the settlement
agreement, is clearly indicated in its claim, which is however ultimately based on the contract. In
addition, taking into account the wording of the settlement agreement, it can be concluded that
the non-payment of the amounts stipulated in the settlement agreement, led to the conclusion
that the settlement agreement became null and void.
12. Along those lines, the DRC judge established that the request to be paid an amount of EUR
40,000 was based on the original contract and the claimed amounts thereunder in case 1902133, i.e. the total amount of EUR 137,000. Taken into account that an amount of EUR 97,000
is already paid as per the settlement agreement, the DRC judge came to the conclusion that the
Claimant could be awarded the outstanding amount of EUR 40,000.
13. In view of the above, the DRC judge concluded that the Respondent is ordered to pay to the
Claimant EUR 40,000 as outstanding balance under the settlement agreement, in accordance
with the general legal principle of “pacta sunt servanda”.
Page 6 of 9
REF 20-01653
14. In addition, taking into account the Claimant’s claim, as well as the DRC’s longstanding
jurisprudence in this respect, the DRC judge decided to award the Claimant interest of 5% p.a.
as from the date on which the original claim was lodged, i.e. 1 April 2019, until the date of
effective payment.
15. Lastly, the DRC judge concluded his deliberations by rejecting any other requests for relief made
by any of the parties.
16. Furthermore, the DRC judge referred to para. 1 and 2 of art. 24bis 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.
17. In this regard, the DRC judge pointed out 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 and for the maximum
duration of three entire and consecutive registration periods.
18. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent
does not pay the amounts due to the Claimant within 45 days as from the moment in which the
Claimant, following the notification of the present decision, communicates the relevant bank
details to the Respondent, a ban from registering any new players, either nationally or
internationally, for the maximum duration of three entire and consecutive registration periods
shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the
Regulations.
19. Finally, the DRC 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. 24bis par. 3
of the Regulations.
Page 7 of 9
REF 20-01653
III. Decision of the DRC Judge
1.
The claim of the Claimant, Ridge Munsy, is accepted.
2.
The Respondent, Buyuksehir Belediye Erzurumspor, has to pay to the Claimant, outstanding
remuneration in the amount of EUR 40,000, plus 5% interest p.a. as from 1 April 2019 until the
date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
7. This decision is rendered without costs.
For the DRC Judge:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 8 of 9
REF 20-01653
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 9 of 9