Labour Disputes
Texto da decisão
REF. FPSD-9215
Decision of the
Dispute Resolution Chamber
passed on 20 April 2023
regarding an employment-related dispute concerning the player Alassane
Ndao
COMPOSITION:
Omar ONGARO (Italy), Deputy Chairperson
José Luis ANDRADE (Portugal), Member
Peter LUKASEK (Slovakia), Member
CLAIMANT:
Vavacars Fatih Karagümrük, Türkiye
Represented by Sami Dinc
RESPONDENT 1:
Al Ahli, Saudi Arabia
RESPONDENT 2:
Alassane Ndao, Senegal
Represented by Nihat Güman
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REF. FPSD-9215
I. Facts of the case
1.
The parties to the dispute are:
-
the Turkish club, Fatih Karagumruk AS (hereinafter: Fatih or the Claimant);
the Saudi club, Al Ahli (hereinafter: Al Ahli or the Respondent 1); and
the Senegalese player, Alassane Ndao (hereinafter: the player or the Respondent 2).
The employment relationship between the player and Fatih
2.
On 10 January 2020, the player and Fatih entered into an employment contract valid as
from the date of signature until the end of the 2021/2022 season (hereinafter: the
employment contract).
3.
On 31 July 2021, the player and Fatih concluded a Protocol (hereinafter: the Protocol) by
means of which the parties decided to terminate the employment contract against a
payment of a compensation of EUR 2,500,000 by the player to the club, payable as follows:
a. EUR 1,250,000 by 6 August 2021; and
b. EUR 1,250,000 by 30 July 2022.
4.
Additionally, the Protocol reads as follows:
“VALIDITY CONDITION: in case the player fails to pay the 1st instalment amounting to
1,250,000-Euro (one million two hundred fifty thousand Euros) determined above to
[Fatih] in full and/or in partial until its due date (06.08.2021) at the latest, this Protocol
regarding the early terminated of [the employment contract] between the parties shall
become null, void and invalid without the need of any notification, notice and/or court
verdict and in such a case [the employment contract] between the parties shall continue
to be in force and the player shall continue to serve his professional services to [Fatih] in
line with [the employment contract] between the parties. In case the player pays the 1st
instalment 1,250,000-Euro (one million two hundred fifty thousand Euros) in net until its
due date to [Fatih], [Fatih] shall make the necessary transactions in order to release the
ITC of the player from Turkish Football Federation to Kingdom of Saudi Arabian Football
Federation upon the formal request on TMS.
PENALTY: in case the player fails to pay the 2nd instalment determined above in full
and/or in partial on its due date (30.07.2022) at the latest, [Fatih] shall send default
notice to the player by email and grands the player 7 business days for payment, in case,
the player does not pay the amount in stated deadline, the player shall be liable to pay
to [Fatih] a penalty amounting of 100.000 EUR (one hundred thousand Euros) in net in
addition to the unpaid amounts and its interests (IN ADDITION TO THE PERFORMANCE).
The player irrevocably agrees that this penalty amount is not extortionate, is set by the
free will of the parties and with the signing of this Protocol, the player waives from the
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REF. FPSD-9215
demand rights of reduction and/or amortization of this penalty amount. The parties
agree that this provision is the indispensable provision (sine qua non) of this Protocol
and this Protocol has been signed taking into consideration this provision”.
The employment relationship between the player and Al Ahli
5.
On an unspecified date, the player and Al Ahli entered into a new employment agreement
valid as from 1 August 2021 until 30 June 2024.
The Re-Structuring Agreement between the player, Fatih and Al Ahli
6.
On 9 July 2022, Fatih, the player and Al Ahli concluded a Re-Structuring Agreement to settle
their financial dues towards each other (hereinafter: the Agreement).
7.
The recitals section of the Agreement reads as follows:
“2. The player has sent a default notice to Al Ahli on 83 July 2022 under FIFA regulation
RSTP article 14bis and under the players’ employment contract signed on 1 August 2021
asking Al Ahli to pay in 15 days the amount of NET 1,554,000 EUR to the player’s account.
3. In order to avoid that the player terminate his employment contract with [Al Ahli]
under FIFA regulation RSTP article 14bis and in order to settle the payment of unpaid
payment due to the player parties (Al Ahli and player and [Fatih]) agree to reschedule the
outstanding amounts of NET 1,554,000 EUR.
4. The parties have also signed this [Agreement] in order to re-structuring the new due
dates of the 2ns instalment determined within [the Protocol] and determining the joint
liability of the player and Al Ahli in regard to the 2nd instalment of the Protocol”.
8.
According to clause 5 of the Agreement, the parties accepted to reorganize their liabilities
as follows:
a. Fatih undertook to pay Al Ahli: (i) EUR 625,000 on 14 July 2022; and (ii) EUR
625,000 on 15 January 2023;
b. Al Ahli undertook to pay the player: (i) EUR 75,000 on 14 July 2022; and (ii)
EUR 229,000 on 30 November 2022.
9.
Furthermore, the main provisions of the Agreement establish the following:
“Player and [Fatih] hereby declares that they shall have no additional claims in relation
with the financial duets arising from [the employment contract] and [the Protocol]
provided that the above payments are paid on time and in full in line with the payment
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REF. FPSD-9215
dates indicated in article 5 (A), (B) and (C), also the player shall declare he shall have no
right to claim any physical or natural commitments in the future at any case and in
connection to the previously signed contract and he acknowledges that has cleared Al
Ahli of any dues relating to him, and therefore, he has to acquit Al Ahli comprehensively
of any right or any claim now or in the future of any type and form. Thus, after full
payment according to this Agreement, the player shall declare that he is not entitled to
obtain any additional sums, whether they be monthly salaries, financial payments or any
other benefit arising from [the employment contract] and the Al Ahli is exempt from
any current amount or future financial benefits or non-financial claims and the player
cannot claim any other amount or take legal action against Al Ahli in local or
international sporting committees or tribunals.
6. The parties have also point out and fixed players’ obligations under [the Protocol] in
regard to determine the early termination compensation to be paid by the player to
[Fatih]. In regard to the early termination compensation, the player shall be obliged to
pay NET 2,500,000 Euro (two million Euro) to [Fatih] in 2 equal instalments.
7. In regard to [the Protocol], the player paid the 1st instalment of the determined early
termination compensation to [Fatih] as its stated. With the signing of this Agreement the
parties irrevocably agree that the 2nd instalment of the aforementioned early
termination compensation in the amount of 1,250,000 Euro (one million two hundred
and fifty Euro) and dated 30.07.2022 shall be paid to [Fatih] by the player and/or Al Ahli
jointly as stipulated below:
1st instalment: 625,000 Euro (six hundred and twenty five thousand Euro): on or before
14.07.2022
2nd instalment: 625,000 Euro (six hundred and twenty five thousand Euro): on or before
15.01.2023.
[...]
8. In case the player and/or Al Ahli failed to fully pay the 1st instalment to [Fatih] in the
amount of 625,000 Euro (six hundred and twenty five thousand Euro) as determined
within the art. 7 and art. 5 of this Agreement. This Agreement became null, void and
invalid without any further notice need. In such a case, the due date determined within
the Protocol will maintain its validity and the abovementioned total amount of 1,250,000
(one million two hundred and fifty Euro) shall become automatically due as of 30.06.2022
without the need of any further notice. In such case, default notice that player has sent
to Al Ahli on 3 July 2022 shall be in force and player shall keep his right to unilateral
termination right of his contract on/by 19 July 2022.
9. Moreover, with the signing of this Agreement, Al Ahli hereby irrevocably agrees accept
and undertakes that, Al Ahli is jointly responsible with the abovementioned total amount
of 1,250,000 Euro (one million two hundred and fifty Euro) with the player. Even this
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REF. FPSD-9215
Agreement shall become null, void and invalid pursuant to art. 8 of this Agreement, Al
Ahli’s joint liability in regard to the abovementioned total amount will remain valid and
[Fatih] shall be entitled to request the abovementioned total amount from the player and
Al Ahli jointly.
10. This Agreement enters into force with its signing by the parties subject to validity
clause at article 8 of this agreement.
11. This Agreement is subjected to and governed by FIFA Statutes and regulation, and
subsidiary by Swiss law. Any disputes arisen from this settlement agreement shall be
settles by FIFA DRC in consideration with the Article 22 of the FIFA Regulations on the
Status and Transfer of Players (RSTP). Each party has a right to appeal against the
decision of FIFA DRC before Court of Arbitration for Sport (CAS). The language of the CAS
proceedings shall be English”.
The default notices sent by Fatih
10. On 17 January 2023, Fatih put the player and Al Ahli in default for the payment of the
second instalment of the Agreement, due by 15 January 2023, with interests and within the
following 10 days.
11. On 31 January 2023, Fatih reached out to the player once again and acknowledged that no
payment had been received until that date. Consequently, Fatih requested payment of
such amount plus EUR 100,000 as penalty “in case the remaining receivables of [Fatih] will
not be paid in 7 business days” with interests.
II. Proceedings before FIFA
12. On 10 February 2023, Fatih filed the claim at hand before FIFA against both the player and
Al Ahli (hereinafter: the Respondents).
13. According to Fatih, the Respondents failed to comply with their financial obligations under
the Agreement and shall be jointly and severally liable to pay it the outstanding amount of
EUR 625,000 plus 5% interest p.a. as from 15 January 2023 until the date of effective
payment.
14. Furthermore, Fatih argued that due to the non-compliance of the obligation, the penalty
clause included in the Protocol was also triggered, hence the player shall also be liable to
pay it a contractual penalty of EUR 100,000 plus 5% interest as from 9 February 2023.
15. On 19 March 2023, the player filed its reply to the claim of Fatih. In doing so, he recalled
the contents of the agreements signed between the parties and explained that Al Ahli failed
to pay him the EUR 229,000 due on 30 November 2022 (cf. parallel claim lodged by the
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REF. FPSD-9215
player against Al Ahli and filed under ref. no. FPSD-8698), as well as it failed to pay Fatih the
EUR 650,000 due on 15 January 2023. Thus, and in the player's view, Al Ahli should be the
one liable to deliver the outstanding amount.
16. As to the penalty, the player explained that the Protocol was superseded by the Agreement,
hence the contractual penalty included in the previous document was no longer applicable.
17. The player concluded as follows:
“- [Al Ahli] is responsible for the payment of 625.000 EUR to [Fatih] due to signing [the
Agreement];
- The player is not responsible for the payment of 625.000 EUR to [Fatih];
- There is no room for application of penalty of 100.000 EUR since the parties replaced
[the Protocol] with [the Agreement]”.
18. On 28 March 2023, Al Ahli submitted its response. In doing so, Al Ahli explained that the
player was the “primary debtor” and ithad only agreed to cover the debt in the event that it
was defaulted. Consequently, the player should be ordered to cure the breach and no
liability was attributable to Al Ahli.
19. In light of the above, the requests for relief of Al Ahli were as follows:
“(1) To reject the claim of [Fatih] against [Al Ahli];
(2) To establish that no payment shall be due by [the player] to [Fatih];
(3) To establish that the Claim shall be addressed primary against the player;
(4) To confirm that the Claim against [Al Ahli] is premature;
(5) Under all circumstances, no legal costs shall be payable by [Al Ahli] to [Fatih];
(6) If any costs of the proceedings shall be due, to order [Fatih] to cover such costs in
full”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
20. 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 10 February 2023 and
submitted for decision on 20 April 2023. Taking into account the wording of art. 34 of the
October 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.
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REF. FPSD-9215
21. 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 Regulations on the Status and Transfer of Players (October 2022 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 Senegalese
player, a Saudi club, and a Turkish club.
22. 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 (October 2022 edition), and
considering that the present claim was lodged on 10 February 2023, the cited edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
23. 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
24. 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.
i. Main legal discussion and considerations
25. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that it consists of a claim for outstanding remuneration
and contractual penalty lodged by Fatih against the player and Al Ahli in connection to the
contracts concluded between them.
26. The DRC highlighted that in 2020, the player and Fatih initiated an employment
relationship, which was subsequently terminated by the same parties upon signature of
the Protocol. According to such document, the player undertook to pay Fatih a
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REF. FPSD-9215
compensation for the premature termination of the employment contract, amounting to
EUR 2,500,000, payable in two instalments of EUR 1,250,000.
27. The first instalment of the Protocol was paid, whereas the second instalment was
rescheduled via the Agreement. On its turn, the Agreement established inter alia that both
the player and Al Ahli would be jointly liable to the payment of the remaining EUR 1,250,000
as follows:
a. EUR 625,000 on 14 July 2022; and
b. EUR 625,000 on 15 January 2023.
28. Notwithstanding the above, the Chamber acknowledged that it remained undisputed
between the parties that the first of the abovementioned instalments was paid, whereas
the second remained outstanding. Consequently:
•
Fatih claims to be entitled to the balance of EUR 625,000 plus interests and the
contractual penalty of EUR 100,000 per the Protocol;
•
Al Ahli argues that it only bore a subsidiary responsibility under the Agreement,
entailing that the player is the one liable to the payment of the abovementioned
sums; and
•
the player argues that Al Ahli was the ultimate debtor (cf. parallel claim FPSD-8698)
and the contractual penalty was not applicable as the Protocol was superseded by
the Agreement.
29. In view of this dissent between the parties, the DRC turned its attention to the constellation
of the contracts signed by and between the parties and, in particular, the Agreement. In
doing so, the Chamber determined that – despite the financial set-up between the parties
similar to the one encountered in a transfer agreement – its wording is clear and
unequivocal to establish that (i) upon signature, the parties confirmed not having any
pending claims in connection with the employment contract and the Protocol; and (ii) the
player and Al Ahli jointly undertook to pay the balance of EUR 1,250,000, out of which EUR
625,000 remained outstanding.
30.
In light of the above and on the basis of the general legal principles of in claris non fit
interpretatio and pacta sunt servanda, the DRC was firm to establish that the content of the
Agreement should be enforced, hence, the player and Al Ahli should be jointly and severally
liable to the payment of EUR 625,000 to Fatih.
31. In addition, taking into consideration Fatih’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the Fatih interest at the rate of 5% p.a.
on the outstanding amount as from 16 January 2023 until the date of effective payment.
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32. As to the contractual penalty, the DRC underlined that in clause 5 of the Agreement the
parties established that there was no pending obligation arising inter alia from the Protocol.
Furthermore, the Chamber stressed that no exception or remark was made concerning the
payment of the contractual penalty. Thus, the DRC concluded that the argumentation of
Fatih in this respect lacked a proper contractual basis and should be dismissed.
ii. Compliance with monetary decisions
33. 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.
34. In this regard, the DRC highlighted that, against players, the consequence of the failure to
pay the relevant amounts in due time shall consist of a restriction on playing in official
matches up until the due amounts are paid and for the maximum duration of six months.
35. Therefore, bearing in mind the above, the DRC decided that, in the event that the player
does not pay the amounts due to the club within 45 days as from the moment in which the
club communicates its relevant bank details, provided that the decision is final and binding,
a restriction on playing in official matches, for the maximum duration of six months shall
become effective on the player in accordance with article 24 paragraphs 2 and 4 of the
Regulations.
36. The DRC recalled that the above-mentioned restriction 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.
37. In parallel, the DRC 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.
38. Notwithstanding the above, the DRC 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.
39. In this respect, the Chamber recalled that by means of decision passed on 8 March 2023
and notified on 9 September 2022, a transfer ban has been imposed on Al Ahli pursuant to
art. 17 par. 4 of the Regulations (i.e., case Ref. No. FPSD-8332).
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REF. FPSD-9215
40. Accordingly, the Chamber established that in casu art. 24 par. 2 of the Regulations shall
apply, insofar as in case Al Ahli 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 club would be moot and against the spirit of the Regulations, in particular the
enforcement mechanism established under art. 24 of the Regulations.
41. In view of the above, the DRC decided that if the amounts herein awarded plus the
respective interest is not paid by Al Ahli within 30 days of notification of this decision, the
present matter shall be submitted, upon request of the player, to the FIFA Disciplinary
Committee for its consideration and formal decision.
42. Lastly, the DRC underscored that the full payment (including all applicable interest) shall
be made by the player and Al Ahli to the bank account provided by the Fatih in the Bank
Account Registration Form, which is attached to the present decision.
d. Costs
43. 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.
44. 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.
45. The DRC concluded its deliberations by rejecting any other requests for relief made by any
of the parties.
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REF. FPSD-9215
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Fatih Karagumruk AS, is partially accepted.
2.
The Respondent 1, Al Ahli, and the Respondent 2, Alassane Ndao, are jointly and severally
liable to pay to the Claimant EUR 625,000 as outstanding remuneration plus 5% interest
p.a. as from 16 January 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.
If full payment (including all applicable interest) is not made:
•
By the Respondent 1 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;
•
By the Respondent 2 within 45 days of notification of this decision pursuant to art.
24 of the Regulations on the Status and Transfer of Players:
1. The Respondent 2 shall be imposed with a restriction on playing in official
matches up until the due amounts are paid. The overall maximum duration
of the restriction shall be of up to six months on playing in official matches.
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 six months.
6.
The abovementioned consequences shall only be enforced at the request of the
Claimant.
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 Governing the Football
Tribunal).
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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