Labour Disputes
Texto da decisão
REF 20-00520/osv
Decis ion of the
DRC Judge
pas s ed on 29 July 2020,
regarding an em ploy m ent-related dis pute concerning the play er Delv in
Chanel Ndinga
BY:
Johan v an Gaalen (South Africa), DRC Judge
CLAIMANT:
Delv in Chanel Ndinga, Congo DR
Repres ented by Mr Alex is N’Diay e
RES PONDENT:
S iv as s por Kulübü Dernegi, Turkey
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I. FACTS OF THE CAS E
1.
On 7 September 2017, the Congolese player, Delvin Chanel Ndinga (hereinafter:
Claimant), and the Turkish club, Sivasspor Kulübü Dernegi, (hereinafter: Respondent),
concluded an employment contract (hereinafter: “the contract”) valid until 31 May 2019.
2.
According to art. 3 of the contract, as from August 2018 until May 2019, the Claimant
was entitled to receive a total amount of EUR 750,000 in 10 monthly equal instalments
of EUR 75,000 each, payable on the 25th of every month.
3.
Art. 7 of the contract provided the following: “[The Claimant] confirms that he has been
fully informed as to the [Respondent]’s 2017-2018 Season Professional Football
Regulation – a copy of which in English he is given – and undertakes in advance to sign
and obey the Professional Football Disciplinary Regulation, that is presented to the [TFF]
at the beginning of the season. Any fines imposed by [the Respondent] accordingly with
the Disciplinary Regulation shall be deducted from the outstanding and/or upcoming
receivables of any kind immediately”.
4.
Moreover, art. 6 par 5 (a) of the Respondent’s “2017 – 2018 FOOTBALL SEASON
PROFESSIONAL FOOTBALL INTERNAL DISCIPLINARY REGULATIONS” (hereinafter:
Disciplinary Regulations) provided the following: “In case [the Claimant] receives
caution/or expulsion except the first caution which can be received according to acts that
are in line with the nature of the game and he is sent off by receiving two cautions even
if it is according to the nature of the game.”
5.
Art. 9 par. 5 (a) and (b) of the Disciplinary Regulations read as follows: “(5) Receiving
Expulsion and Cautions in the Matches and Having Suspended from the Matches,
Ineligibility and Money Fines Given by TFF/UEFA Committees.
(a)In case that [the player] displays unsporting behaviour except the nature of the game
or shows “unsporting behaviour” “ unsporting declarations “ determined in TFF or UEFA
Discipline Regulation and causes “bodily harm” to others and racist declaration and
deliberate action and the acts against TFF or UEFA Discipline Regulation’s other
provisions or “fair play” and/or gets suspended or declared as ineligible from the matches
arising from statements given before or after the matches or routine press releases, [the
player] will not be entitled to per game salary and bonus payment for the relevant match
In addition to this, he will be fined as his cost per match.
(b)In case of two cautions received during the same match incurring a red card, [the
player] will not be entitled to per match salary and bonus payment for the relevant match
without considering the reasons of the yellow cards. In addition to this, he will be fined
as his cost per match.”
6.
On 10 February 2020, the Claimant sent a default notice to the Respondent, requesting
the payment of EUR 75,000 corresponding to the May 2019 salary within 10 days.
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7.
On 25 March 2020, the Claimant lodged a claim against the Respondent requesting the
following:
a) EUR 75,000, corresponding to the monthly salary of May 2019;
b) EUR 7,500 “for every month of delay, starting from 25 May 2019 (i.e. currently
EUR 75,000, likely to evolve depending on the moment the Respondent will
effectively pay)”;
c) EUR 15,000 “as penalty, corresponding to the compensation for disloyalty in a
contractual relationship”;
d) EUR 3,500 as “legal fees incurred by the Claimant”.
8.
In his claim, the Claimant argued that he played with the Respondent until the expiry of
the contract and that the latter failed to pay his last monthly salary amounting to EUR
75,000 due on 25 May 2019.
9.
In its reply to the claim, the Respondent explained that the Claimant was sent off during
the game on 19 May 2018 due to a violation of fair-play according to art. 6 par. 5 (a) of
the Respondent’s “Club disciplinary Regulations” for the 2017-2018 football season.
10. Consequently, the Respondent held that the Claimant was fined in the amount of EUR
20,000, following a decision of its Board and in accordance with art. 7 under the “Special
provisions” section of the contract. According to the Respondent, said decision which had
been allegedly notified to the Claimant and had been accepted by the Claimant.
11. In continuation, the Respondent explained that the total receivables of the Claimant
amounted to EUR 1,360,000, and held that it had paid the Claimant in Euro and Turkish
Lira for a total amount of EUR 1,355,045.07, taking into account the mentioned
deduction of EUR 20,000.
12. Moreover, the Respondent rejected the amounts claimed by the Claimant as penalties
due to a lack of contractual basis as well as any reimbursement of legal fees.
13. As a result of the above, the Respondent deemed that on the date of claim, only EUR
4,954.93 was outstanding to the Claimant, amount which the Respondent paid on 11 May
2020.
14. As such, the Respondent requested the claim to be rejected in full.
15. Having been invited to comment on the alleged payment proofs provided by the
Respondent, the Claimant amended his claim on 13 June 2020 as follows:
a) The provided evidence of payments in Turkish currency referred to as “pursuant
to his receivables” do not effectively proof that such payments were salaries as
per the contract, i.e. only payments in EUR are to be considered as salaries;
b) The alleged fine of EUR 20,000 has not been substantiated on how said amount
has been decided, therefore the proceedings leading to said decision cannot be
retained as valid;
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c) The Claimant acknowledged the payment of EUR 4,954.93 and therefore
requested EUR 70,045.07 corresponding to the remaining salary for May 2019;
d) Based on the evidence of payment provided by the Respondent, the Claimant
observed that it failed to pay him EUR 28,570 as part of the May 2018 salary. As
such, the Claimant requested said payment of the remaining EUR 28,570 as well.
e) Finally, the Claimant requested interest of 5% interest p.a. over both
aforementioned amounts, respectively as from 25 May 2018 and 25 May 2019.
16. With regard to the Claimant’s amendment of claim, the Respondent held that said
request as to an amount due on 25 May 2018 is to be considered time-barred and that
actually said request “is seen as a replacement of the excluded unsubstantiated requests
of several penalties and created the impression in the eyes of the Respondent that the
Claimant has an expectation on the collection of a certain amount and is aiming for
maximizing the overall amount of their requests in line with this expectation.”
II. CONS IDERATIONS OF THE DIS PUTE RES OLUTION CHAMBER (DRC)
JUDGE
17. First of all, the 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 25
March 2020. Taking into account the wording of art. 21 of the 2020 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.
18. Subsequently, DRC Judge referred to art. 3 par. 1 of the Procedural Rules and confirmed
that in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players 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 Congolese player and a Turkish club.
19. In continuation, the DRC Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (edition 2020) and
considering that the present claim was lodged on 25 March 2020, the March 2020 edition
of the said regulations (hereinafter: Regulations) is applicable to the matter at hand as
to the substance.
20. 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
DRC Judge started by acknowledging all the above-mentioned facts and arguments as
well as the documentation on file. However, the DRC Judge emphasised that in the
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following considerations he will refer only to the facts, arguments and documentary
evidence, which he considered pertinent for the assessment of the matter at hand.
21. In this respect, the DRC Judge firstly recalled that the Claimant and the Respondent
signed an employment contract which expired on 31 May 2019. In continuation, the DRC
Judge noted that on 25 March 2020, amended on 13 June 2020, the Claimant lodged a
claim requesting, inter alia, EUR 28,570 as part of the May 2018 salary, as well as EUR
70,045.07 corresponding to the remaining salary for May 2019.
22. In this context, the DRC judge took particular note of the fact that, on 10 February 2020,
the Claimant put the Respondent in default of payment of EUR 75,000, corresponding to
the May 2019 salary, setting a 10 days’ time limit in order to remedy the default.
23. Having said this, the DRC Judge took into account the Respondent’s position, which
argued that no amount was outstanding to the Claimant. In this regard, the DRC Judge
noted that, according to the Respondent, EUR 20,000 corresponding to a disciplinary fine
was to be deducted from the Claimant’s receivables and that it paid the Claimant in
Turkish Lira and Euro to an extend that only EUR 4,954.93 was outstanding on the
contract expiry date. Finally, the DRC Judge evoked that, as per the Respondent, it paid
the Claimant the amount of EUR 4,954.93 on 11 May 2020.
24. Thus, the DRC Judge established that the fundamental issue at stake is determining
whether there are still outstanding salaries due at the Claimant. In addition, the DRC
Judge understood that it would also have to determine whether the Respondent was
correct in deducting the salary from the Claimant.
25. In this regard, the DRC Judge firstly noted that on 13 June 2020, the Claimant provided
his comments with regard to the bank statements submitted by the Respondent and
acknowledged having received the total amounts of EUR 4,954.93 on 11 May 2020.
26. Subsequently, the DRC Judge pointed out that the document entitled “2017 – 2018
FOOTBALL SEASON PROFESSIONAL FOOTBALL INTERNAL DISCIPLINARY REGULATIONS”,
submitted by the Respondent, was not signed by the Claimant. Furthermore, the DRC
Judge deemed it unclear as to whether or not the Claimant was duly notified with regard
to the disciplinary fine imposed on him by the Respondent. In other words, as per the
DRC Judge, given that the Respondent failed to demonstrate that the Claimant was
effectively made aware of said fine, it cannot be guaranteed that he had the opportunity
to properly exercise his right of defence.
27. Given the above considerations, the DRC Judge decided not to take into account the EUR
20,000 corresponding to the disciplinary fine deducted by the Respondent from the
Claimant receivables.
28. With regard to the alleged payments made to the Claimant, the DRC Judge considered
that the documentation provided by the Respondent referred exclusively to the 2017-
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2018 season. In this context, the DRC Judge wished to recall that the Claimant clearly
requested the remaining May 2019 salary. As such, the DRC Judge found himself
incapable of encountering a link between the proof of payments provided by the
Respondent and the request for the outstanding May 2019 by the Claimant.
29. As a consequence of the above considerations, the DRC Judge followed the Claimant’s
request, and determined that the amount of EUR 70,045.07 corresponding to the
remaining May 2019 salary, remained outstanding.
30. As regards the Claimant’s request for the payment of EUR 28,570 as part of the salary of
May 2018, the DRC Judge firstly took into consideration that said request was done by
means of his amended claim on 13 June 2020, following the documentation provided by
the Respondent.
31. Having said this, referring to art. 25 par. 5 of the Regulations on the Status and Transfer
of Players, the DRC Judge concluded that the time limit of two years for the Claimant to
claim outstanding remuneration related to the May 2018 salary on the basis of the
contract had elapsed at the time he requested said alleged outstanding receivable front
of FIFA on 13 June 2020.
32. Therefore, the DRC Judge decided that the Claimant’s additional request for the payment
of EUR 28,570 as part of the salary of May 2018, is barred by the statute of limitations
and, consequently, inadmissible.
33. In continuation, the DRC Judge turned his attention to the Claimant’s requests for EUR
7,500 “for every month of delay, starting from 25 May 2019”, and EUR 15,000 “as penalty,
corresponding to the compensation for disloyalty in a contractual relationship”,
respectively.
34. In this regard, the DRC Judge deemed it appropriate to point out that the requests for
said payments presented by the Claimant had no legal or regulatory basis and concluded
that no corroborating evidence had been submitted that demonstrated that the Claimant
was entitled to said amounts.
35. Given the above considerations, the DRC Judge determined that to the Claimant’s
requests for EUR 7,500 “for every month of delay, starting from 25 May 2019”, and EUR
15,000 “as penalty, corresponding to the compensation for disloyalty in a contractual
relationship” are to be rejected.
36. Finally, the DRC Judge recalled that, in his claim, the Claimant requested EUR 3,500 in
legal fees. In this context, the DRC Judge referred to art. 18 par. 4 of the Procedural Rules
as well as to its long-standing and well-established jurisprudence, in accordance with
which no procedural compensation shall be awarded in proceedings in front of the
Dispute Resolution Chamber. Consequently, the DRC Judge decided to reject the
Claimant’s request relating to legal expenses.
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37. Given all of the above considerations, the DRC Judge concluded that that the Respondent
failed to remit the Claimant’s remuneration in the total amount of EUR 70,045.07,
corresponding to the remainder of the instalment of EUR 75,000, which fell due on 25
May 2019.
38. Consequently, the DRC judge decided that, in accordance with the general legal principle
of pacta sunt servanda, the Respondent is liable to pay to the Claimant the total amount
of EUR 70,045.07.
39. In addition, taking into account the Claimant’s request for interests on the amount of
EUR 70,045.07 by means of his amended claim of 13 June 2020, as well as the constant
practice of the Dispute Resolution Chamber, the DRC judge decided that the Respondent
must pay to the Claimant interest of 5% p.a. on the relevant payment as of the day
following the day on which the relevant payment fell due, until the date of effective
payment.
40. What is more, taking into account the consideration under number II.19. above, the DRC
Judge referred to par. 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.
41. 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.
42. Therefore, bearing in mind the above, the DRC Judge 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.
43. Furthermore, 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.
44. The DRC Judge concluded its deliberations in the present matter by establishing that any
further claims lodged by the Claimant are rejected.
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III. DECIS ION OF THE DIS PUTE RES OLUTION CHAMBER (DRC) JUDGE
1.
The claim of the Claimant, Delvin Chanel Ndinga, is partially accepted insofar it is
admissible.
2.
The Respondent, Sivasspor Kulübü Dernegi, has to pay to the Claimant, the following
amount:
- EUR 70,045.07 as outstanding remuneration plus 5% interest p.a. as from 26 May
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 ps [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 w ithin 45 day s , 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.
For the Dispute Resolution Chamber Judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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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:
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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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