Labour Disputes
Texto da decisão
REF. FPSD-14314
Decision of the
Dispute Resolution Chamber
passed on 30 May 2024
regarding an employment-related dispute concerning the player Pape
Alioune Ndiaye
COMPOSITION:
Lívia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman
Stella MARIS JUNCOS (Argentina), Member
Iñigo RIESTRA (Mexico), Member
CLAIMANT:
Pape Alioune Ndiaye, France
Represented by Brandsmiths
RESPONDENT:
Astor Enerji Sanliurfaspor, Türkiye
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REF. FPSD-14314
I. Facts of the case
1.
On 24 July 2023, the French player Pape Alioune Ndiaye (hereinafter: the Player or the
Claimant) and the Turkish club Astor Enerji Sanliurfaspor (hereinafter: the Club or the
Respondent) entered into a document entitled “Additional Protocol” valid for the 2023/2024
season (hereinafter: the Contract).
2.
According to the information retrieved from the FIFA Transfer Matching System (TMS), the
2023/2024 season will run from 1 July 2023 to 30 June 2024.
3.
The Club undertook to pay the Player the following amounts:
4.
•
EUR 120,000 per annum, being (i) EUR 30,000 in advance, “immediately upon the
Player being registered with the Club”; and (ii) EUR 90,000 as salary for 10 months “in
equal instalments of 9.000 Euro per month, commencing on 1 August 2023 and finishing
on 30 May 2024”; and
•
EUR 50,000 as bonus “if the team advances to the top division”.
The Player has provided proof of having received the following payments from the Club:
•
•
5.
EUR 9,000 on 8 September 2023; and
EUR 9,000 on 19 October 2023.
Between December 2023 and January 2024, the Player exchanged messages via WhatsApp
with an alleged translator of the Club named Mr Emre Gormez (hereinafter: Mr Gormez).
concerning his unpaid wages and a possible termination of the Contract. In particular:
•
On 27 December 2023, the Player first demanded his outstanding salaries;
•
In response, Mr Gormez informed the Player of the Club’s intention to terminate
his Contract upon payment of two salaries;
•
On 30 December 2023, Mr Gormez informed the Player of the Club’s request that
he vacate his home;
•
On 31 December 2023, Mr Gormez provided the Player with an authorization
signed by the Club authorizing him to negotiate a new employment relationship
with other clubs until 10 January 2024;
•
On 2 January 2024, Mr Gormez reiterated to the Player the Club’s request that he
leave his apartment. He sent further messages in this regard on 9 January 2024;
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REF. FPSD-14314
•
On 10 January 2024, Mr Gormez sent the Player another authorization, this time
allowing him permission to negotiate with other clubs until 17 January 2024.
6.
On 5 January 2024, the Player put the Club in default in respect of outstanding
remuneration and breach of contract. In this context, the Player acknowledged that (i) he
had not received his salaries from October to December 2023 (i.e., EUR 27,000), (ii) he had
been prevented from participating in training and official matches with his teammates; and
(iii) he had received a notice of termination via WhatsApp, which was subsequently deleted.
Consequently, the Player requested that the breaches be remedied by 21 January 2024 at
the latest.
7.
On 22 January 2024, the Player notified the Club of the termination of the Contract
pursuant to art. 14 and 14bis of the Regulations on the Status and Transfer of Players
(RSTP).
8.
On 1 February 2024, the Player signed a new contract with the Kazakh club, Tobol Football
Club valid from the date of signature until 30 December 2025. Accordingly, the Player would
be entitled to a monthly salary of KZT 90,000 net. In addition, the Player would also be
entitled to the additional monthly payments of KZT 8,045,000 net during 2024.
9.
According to the information available in TMS and submitted by the Player:
•
On 8 February 2024 (10:44 CET), Tobol Football Club entered a transfer instruction
in order to permanently employ the Player as free agent;
•
On 9 February 2024 (16:43 CET), the Kazakhstan Football Federation (KFF)
requested the Player’s International Transfer Certificate (ITC);
•
In parallel and at an unspecified time, a purported representative of the Club
provided the Player with a draft of a “Certificate of Release” via WhatsApp and
requested him to sign the document in order to release his ITC;
•
On 9 February 2024, the Player (through his legal representative) emailed the Club
to release the Player’s ITC by no later than 12 February 2024 and to refrain from
forcing him to sign any waiver; and
•
On 9 February 2024 (18:43 CET), the Turkish Football Federation (TFF) delivered the
Player’s ITC, which was issued on 11 February 2024.
10. On 6 March 2024, the Player demanded that the Club pay any outstanding amount
(totalling EUR 36,000) under penalty of facing litigation before FIFA.
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REF. FPSD-14314
II. Proceedings before FIFA
11. On 5 April 2024, the Club lodged a claim against the Player.
12. In his claim, the Player recalled the extensive exchange of messages between the parties
both by WhatsApp and by email, and stressed that the Club not only stopped paying his
salaries, but also evicted him from his apartment and forced him to terminate the Contract
prematurely. Consequently, the Player claimed to have terminated the Contract with just
cause based on art. 14 and 14bis of the RSTP.
13. In light of the above, the Player requested to be awarded:
•
EUR 36,000 as outstanding remuneration corresponding to the salaries from
October to January 2024 (i.e., 9,000 each), plus 5% interest as from the respective
due dates until the date of payment;
•
EUR 36,000 as compensation for breach of contract corresponding to the residual
value of the Contract (i.e., the salaries from February to May 2024), plus additional
compensation of 4 month’s salary for egregious circumstances and interest at 5%
p.a. from the date of termination of the Contract. The abusive behaviour of the Club
was described by the Player as follows, quoted verbatim:
a. unlawfully withheld the Player’s ITC, instead attempting to force him into signing
an illegal waiver of his rights;
b. forced the Player the train in isolation with no justification;
c. placed pressure on the Player to vaccate his accomodation (and giving
unreasonable deadlines to do so over a holiday period);
d. denied the Player access to training facilities altogether (including the cafeterias
and areas where the Player would eat);
e. threatened to terminate the Player’s Contract if he did not find a new club within
a 10 day period;
f. materially breached the Contract within the protected period; and
g. failed to respond to any of the default notices sent by the Player.
•
GBP 7,000 in legal costs incurred as a result of the breach.
14. The Club failed to respond to the claim despite being invited to do so.
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REF. FPSD-14314
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. 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 5 April 2024 and submitted for decision on 30
May 2024. Taking into account the wording of art. 34 of the March 2024 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.
16. 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 RSTP
(February 2024 edition), the DRC is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
French player and a Turkish club.
17. 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 RSTP (February 2024 edition) and considering that the present claim was
lodged on 5 April 2024, the cited edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
b. Burden of proof
18. 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 TMS.
c. Merits of the dispute
19. Having established its 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.
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i. Main legal discussion and considerations
20. The Chamber moved to the substance of the matter and noted that it concerned a claim
by the Player against the Club for outstanding remuneration, compensation for breach of
contract, and contribution to legal costs.
21. On the other hand, the DRC took into account that the Club, for its part, did not submit any
response to the Player’s claim, despite having been invited to do so. The DRC therefore
considered that the Club has waived its right of defence and had thus accepted the Player’s
allegations. It also confirmed that it should reach its decision on the basis of the evidence
and arguments submitted by the Player in accordance with art. 14 par. 1 of the Procedural
Rules.
22. In the absence of any evidence to disprove the Player’s allegations, the Chamber
acknowledged that three of his monthly salaries were outstanding at the time the default
notice was sent (i.e., from October to December 2023). Furthermore, the Player gave the
Club a reasonable deadline (i.e., 15 days) to remedy the breach, but to no avail.
23. Consequently, the DRC established that such a persistent and substantial breach of the
contractual obligations by the Club would already justify the unilateral termination of the
Contract and, in accordance with the settled jurisprudence of the DRC, would also render
the Club liable for breach of contract.
24. On the basis of the factual and contractual situation, the Chamber decided that the Player
had just cause to terminate the Contract in accordance with art. 14bis of the Regulations.
In the Chamber’s view, this was further supported by the evidence provided by the Player
suggesting that the Club was no longer interested in retaining his services.
25. The DRC determined that the Club should then be liable for consequences that follow.
ii. Consequences
26. Having stated the above, the Chamber turned its attention to the question of the
consequences of such an unjustified breach of contract committed by the Club.
27. The Chamber found that the outstanding remuneration at the time of the termination,
together with the Player’s specific requests for relief, was equivalent to four salaries under
the Contract i.e., from October 2023 to January 2024.
28. In addition, taking into account the Player’s request and the Chamber’s consistent practice
in this regard, the latter has decided to award him interest at the rate of 5% p.a. on each of
the salaries from the respective due dates until the date of actual payment, to be calculated
as follows:
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REF. FPSD-14314
•
EUR 9,000 as the salary for October 2023 plus interest from 1 November 2023;
•
EUR 9,000 as the salary for November 2023 plus interest from 1 December 2023;
•
EUR 9,000 as the salary for December 2023 plus interest from 1 January 2024; and
•
EUR 9,000 as the salary for January 2024 plus interest from 22 January 2024.
29. 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.
30. In application of the relevant provision, the Chamber held that it first had to clarify whether
the pertinent employment contract contained a provision by means of which the parties
had agreed beforehand upon an amount of compensation payable 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.
31. As a consequence, 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.
32. Bearing in mind the foregoing as well as the Player’s claim, 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 36,000 (i.e., the salaries from February to May 2024)
serves as the basis for the determination of the amount of compensation for breach of
contract.
33. 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
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REF. FPSD-14314
compensation for breach of contract in connection with the Player’s general obligation to
mitigate his damages.
34. Indeed, the Player found employment with Tobol Football Club and fully mitigated his
damages.
35. The Chamber then referred to art. 17 par. 1 lit. ii) of the Regulations, according to which a
player is entitled to an amount equal to three monthly salaries as additional compensation
if the termination of the employment contract at stake is due to overdue payables. The DRC
also recalled that, in case of egregious circumstances, the additional compensation may be
increased up to a maximum of six-monthly salaries, provided that the overall
compensation does not exceed the residual value of the prematurely terminated contract.
36. In the present case, the Chamber first confirmed that the Contract was terminated for the
aforementioned reason i.e., overdue payables by the Club. Furthermore, the Chamber
noted that the evidence on file showed that the Club had behaved in a controversial
manner towards the Player, in particular by (i) forcing him to vacate his apartment at short
notice; and (ii) suggesting that the release of his ITC would be conditional upon the signing
of a financial release, while it was still in arrears with a significant portion of his
remuneration for more than three months. In contrast, the Chamber also outlined that the
Club was given the opportunity to defend itself against the Player’s allegations but chose
not to do so.
37. In this regard, the DRC decided to award additional compensation in the amount of EUR
36.000, i.e., four times the Player’s monthly salary.
38. Consequently, taking into account all of the above considerations and the specificities of
the case at hand, the Chamber decided that the Club should pay the Player EUR 36,000,
which was considered to be a reasonable and justified amount of compensation for breach
of contract.
39. Lastly, the Chamber decided to award him interest on said compensation at the rate of 5%
p.a. from 22 January 2024 until the date of effective payment.
iii. Compliance with monetary decisions
40. 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.
41. 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
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REF. FPSD-14314
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.
42. Therefore, bearing in mind the above, the DRC decided that the Club must pay the full
amount due (including all applicable interest) to the Player within 45 days of notification of
the decision, failing which, at the request of the Player, 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 Club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
43. The Club 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.
44. 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
45. 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.
46. Likewise, and for the sake of completeness, the Chamber recalled the content of art. 25
par. 8 of the Procedural Rules and decided that no procedural compensation should be
awarded in these proceedings. The Player’s request in this regard was therefore rejected.
47. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-14314
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Pape Alioune Ndiaye, is partially accepted.
2.
The Respondent, Astor Enerji Sanliurfaspor, must pay to the Claimant the following
amount(s):
- EUR 9,000 as outstanding remuneration plus 5% interest p.a. as from 1 November 2023
until the date of effective payment;
- EUR 9,000 as outstanding remuneration plus 5% interest p.a. as from 1 December 2023
until the date of effective payment;
- EUR 9,000 as outstanding remuneration plus 5% interest p.a. as from 1 January 2024
until the date of effective payment;
- EUR 9,000 as outstanding remuneration plus 5% interest p.a. as from 22 January 2024
until the date of effective payment; and
- EUR 36,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 22 January 2024 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-14314
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-14314
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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