Labour Disputes
Texto da decisão
REF. FPSD-15285
Decision of the
Dispute Resolution Chamber
passed on 13 September 2024
regarding an employment-related dispute concerning the
player Dino Ndlovu
BY:
Jorge GUTIÉRREZ (Costa Rica)
CLAIMANT:
Dino Ndlovu, South Africa
Represented by Loizos Hadjidemetriou
RESPONDENT:
Sakaryaspor A.Ş., Türkiye
Represented by Umur Varat
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REF. FPSD-15285
I. Facts of the case
1.
On 1 August 2023, the South African player Dino Ndlovu (hereinafter, the Claimant or the Player) and
the Turkish club Sakaryaspor A.Ş., (hereinafter, the Respondent or the Club) concluded an
employment contract (hereinafter, the Contract) valid until 31 May 2024.
2.
Pursuant to Clause 3 of the Contract, the Club undertook to pay to the Player (hereinafter, jointly
referred to as the Parties) the following amounts:
“The Club shall make the payment to the player for 2023-2024 season as below:
- 20,150 EUR shall be paid on 02.07.2023 in cash.
- 10.000 EUR shall be paid on 15.07.2023 in cash.
- 10.000 EUR shall be paid on 30.08.2023 in cash.
Annual salary of 179.850 EUR (the salary shall be paid between 2023 August and 2024 June with the
amount of 16.350 EUR per month)”.
3.
Furthermore, Clause 3 of the Contract also provided the following:
“In the case where the Euro costs up to over 30 TL compared to the Turkish Lira, the payments will be set
at 1 EUR = 30 TL, and the salary will be also calculated and paid in EUR, however not to exceed than
490.500 TL”.
II. Proceedings before FIFA
4.
On 18 July 2024, the Player filed the claim at hand before FIFA. A brief summary of the position of
the Parties is detailed in continuation.
a. Position of the Player
5.
The Player argued that, in breach of its contractual obligations, the Club failed to pay him his salary
for the month of June 2024.
6.
The Player requested the following relief:
“The Claimant requests the FIFA DRC to order the Respondent to pay the following:
i. EUR 16,350 plus legal interest from 01/07/2024 until full payment”.
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REF. FPSD-15285
b. Position of the Club
7.
In its reply, the Club sustained that, according to Clause 3 of the Contract, the Parties established
that “if the exchange rate of 1 EUR exceeded 30 TRY, all payments specified in the Contract will be set as
1 EUR = 30 TRY with a maximum amount of 490.500 TL (16.350 EUR x 30 TRY)”.
8.
According to the Club, the monthly salary of the Player was due by the end of each month. In this
respect, the Club sustained that, on 30 June 2024, 1 EUR corresponded to TRY 35,2099.
9.
Based on the above, the Club argued that “It’s crystal clear that on the due date 1 Euro exceeded 30
TRY and the specific condition is triggered according to the Contract”. Accordingly, “it is clearly evident
that the Claimant be able to request only and maximum 13.931 EUR (490.500 TRY / 35,2009 TRY) from
the Respondent Club”.
10. The Club requested the following relief:
1. To reject all the claims of Claimant.
2. If the FIFA Tribunal accepts the case, acceptance that the maximum exchange rate as 1 Euro as 30
TL.
3. If the Football Tribunal accepts the case, the Respondent requests that taking into consideration
the special condition in the Contract and determined the outstanding payment as 13.931 Euro.
4. If the Football Tribunal accepts the case, the Respondent also requests that the interest’s starting
date be determined as 1 July 2024 which the Respondent defaulted on paying the June 2024
monthly salary.
5. To order to pay Claimant to pay legal expenses, judicial costs and attorney fee to the Respondent.
c.
Player’s further comments
11. The Player informed that “he is willing to accept the issuance of a decision on the amount which the
Respondent recognises as due to him, i.e., EUR 13,931 plus legal interest from 01/07/2024 until full
settlement”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter, the Single Judge)
analysed whether he was competent to deal with the case at hand. In this respect, he took note that
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REF. FPSD-15285
the present matter was presented to FIFA on 18 July 2024 and submitted for decision on 13
September 2024. Taking into account the wording of art. 34 of the March 2023 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.
13. Furthermore, the Single Judge 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 (June 2024 edition), he is competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between a South
African player and a Turkish club.
14. Subsequently, the Single 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 (June 2024 edition), and considering that the
present claim was lodged on 18 July 2024, the June 2024 edition of said regulations (hereinafter, the
Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
15. The Single Judge 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 Single Judge stressed the wording of art. 13 par.
4 of the Procedural Rules, pursuant to which he 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
16. Having established the competence and the applicable regulations, the Single Judge entered into
the merits of the dispute. In this respect, the Single Judge started by acknowledging all the abovementioned facts as well as the arguments and the documentation on file. However, the Single Judge
emphasised that in the following considerations he will refer only to the facts, arguments and
documentary evidence, which he considered pertinent for assessing the matter at hand.
i. Main legal discussion and considerations
17. The Single Judge then moved to the substance of the matter, and took note of the fact that the
present case concerns outstanding remuneration arising from the Contract concluded between the
Parties.
18. In this respect, the Single Judge noted that the Player initially claimed being entitled to EUR 16,350
per his monthly salary of June 2024. The Single Judge also noted that the Club did not dispute being
in default for this monthly instalment. The Club, however, sustained that pursuant to Clause 3 of the
Contract, the Player’s monthly salary for the abovementioned month amounted to EUR 13,931 after
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REF. FPSD-15285
the relevant conversion from Turkish Lira to Euro. Lastly, the Single Judge observed that the Player
accepted the application of the conversion as informed by the Club.
19. In view of the foregoing and bearing in mind the basic legal principle of pacta sunt servanda, which
in essence means that agreements must be respected by the parties in good faith, the Respondent
is held liable to pay the Claimant the outstanding remuneration deriving from the Contract
concluded between the Parties, i.e., EUR 13,931.
20. In addition, taking into consideration the Claimant’s request as well as the constant practice of the
Football Tribunal in this regard, the Single Judge decided to award the Player interest at the rate of
5% per annum on the outstanding remuneration as from 1 July 2024 until the date of effective
payment.
ii. Compliance with monetary decisions
21. Finally, taking into account the applicable Regulations, the Single Judge 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.
22. In this regard, the Single Judge 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 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.
23. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of notification of
the decision, failing which, at the request of the Claimant, 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.
24. 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.
25. The Single 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. 24 par. 8 of the
Regulations.
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d. Costs
26. The Single Judge 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 Single Judge decided that no procedural costs were to be imposed on the Parties.
27. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art. 25 par. 8
of the Procedural Rules, and decided that no procedural compensation shall be awarded in these
proceedings.
28. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief made
by any of the Parties.
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REF. FPSD-15285
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Dino Ndlovu, is accepted.
2.
The Respondent, Sakaryaspor A.Ş., must pay to the Claimant the following amount(s):
EUR 13,931 as outstanding remuneration plus 5% interest p.a. as from 1 July 2024 until the date
of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-15285
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
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
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