Labour Disputes
Texto da decisão
REF. FPSD-15271
Decision of the
Dispute Resolution Chamber
passed on 3 October 2024
regarding an employment-related dispute concerning the player Nicolas Julio
NKoulou Ndoubena
COMPOSITION:
Lívia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman
Khalid AWAD ALTHEBITY (Saudi Arabia), Member
Tomislav KASALO (Croatia), Member
CLAIMANT:
Nicolas Julio NKoulou Ndoubena, France
Represented by Umur Varat
RESPONDENT:
Gaziantep Futbol Kulübü A.Ş., Türkiye
pg. 2
REF. FPSD-15271
I. Facts of the case
1. On 11 September 2023, the French player Nicolas Julio NKoulou Ndoubena (hereinafter, the
“Claimant” or “Player”) and the Turkish club Gaziantep Futbol Kulübü A.Ş. (hereinafter, the
“Respondent” or “Club”) concluded an employment contract (hereinafter, the “Contract”),
valid as from 11 September 2023 until 30 June 2024.
2. In accordance with the Contract, the Respondent undertook to pay to the Claimant, inter
alia:
-
EUR 330,000 net for the 2023/2024 football season in the following instalments:
o EUR 36,500 on 30 September 2023
o EUR 36,500 on 30 October 2023
o EUR 36,500 on 30 November 2023
o EUR 36,500 on 30 December 2023
o EUR 36,500 on 30 January 2024
o EUR 36,500 on 28 February 2024
o EUR 36,500 on 30 March 2024
o EUR 36,500 on 30 April 2024
o EUR 38,000 on 30 May 2024
3. The Contract further provided:
“The amounts under this Contract are NET of taxes which are subject to withholding tax that the
Club is obliged to pay.”
“Except for the payments mentioned above and also non-regular bonuses determined
exclusively by the Club, no additional payment such as per-match bonuses, success bonuses
and/or premiums shall be made to the Player.”
“Premiums which will be paid to Player (winning, on terms, etc.) and premium payment rates
shall be exclusively determined by the Board of Directors of Club.”
4.
On 19 April 2024, the Claimant and the Respondent signed a document (hereinafter: the
“Bonus Agreement”) which provided as follows:
“In accordance with the decision taken by our Club’s Board of Directors, in case Gaziantep FK
stays in the Turkish super league at the end of the 2023-2024 season, to be clear, Gaziantep FK
finished the Turkish Super League in the place 16th or higher level at the end of the 2023-2024
season and becomes eligible to play in the Turkish Super League in the 2024-2025 season, a
success bonus of net 1,000,000 TL (One Million Turkish Liras) shall be paid by our club to all
professional players in the A Team.
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REF. FPSD-15271
[...]
The success bonus of 1,000,000 TL shall be paid [ . . . ] within 10 business days at the latest
following the match in which Gaziantep FK guarantees to stay in the Super League [ . . . .]”
5. On 4 July 2024 the Claimant sent a default notice to the Respondent citing the following
overdue remuneration:
-
EUR 36,500 net due on 30 March 2024
EUR 36,500 net due on 30 April 2024
EUR 38,000 net due on 30 May 2024
TRY 1,000,000 net due on 7 June 2024
6. In the default notice, the Claimant provided the Respondent 10 days to fulfil its financial
obligation.
II. Proceedings before FIFA
7. On 17 July 2024, the Claimant filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Position of the Claimant
8. According to the Claimant, the Club failed to remit the overdue payables following the
default notice.
9. The requests for relief of the Claimant were the following:
“TO CONDEMN GAZİANTEP to pay an outstanding remuneration from 2023/2024 football
season as following:
1. From the Contract:
TOTAL NET € 111,000 (one hundred eleven thousand Euros) to add by an interest at 5%
per annum from following due dates until the date of effective payment;
30.03.2024 36.500,00 Euro
30.04.2024 36.500,00 Euro
30.05.2024 38.000,00 Euro
AND
2. From the Protocol [the Bonus Agreement]
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REF. FPSD-15271
TOTAL 1.000.000 Turkish Lira Net which is equivalent to 27.721 Euro NET according to
Turkish Central Bank of Republic of Turkey (Exhibit 6) as a net to add by an interest at 5%
per annum from following due dates until the date of effective payment; in case our
request to be paid as an Euro payment will not be accepted we kindly ask to be ruled as
1.000.000 Turkish Lira with an interest;
3. TO APPLY Art.24 BIS FIFA RSTP.”
b. Position of the Respondent
10. In its reply, the Respondent acknowledged that it did not fulfil the following instalments:
-
EUR 36,500 due 30 March 2024
EUR 36,500 due 30 April 2024
EUR 38,000 due 30 May 2024
11. The Respondent cited for its failure to complete payment the Club’s economic difficulties
caused by fluctuations in the exchange rates between the Turkish Lira and the Euro, as well
as an earthquake that occurred on 6 February 2023 in the Club’s region.
12. Further, the Respondent argued that the other payment claimed by the Claimant for TRY
1,000,000 were not payable per the Contract and were not proven by the Claimant, citing
the following Contract provision:
13. “Except for the payments mentioned above and also non-regular bonuses determined exclusively
by the Club, no additional payment such as per-match bonuses, success bonuses and/or
premiums shall be made to the Player.”
14. The Respondent requested that the claim be dismissed “to give [the Respondent] extra time
to pay for the salaries in accordance with the Contract.” Further, the Respondent requested
that no sporting sanctions be applied, should the Claimant’s request be accepted.
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REF. FPSD-15271
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 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 17 July 2024 and submitted for decision on 3
October 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.
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
Regulations on the Status and Transfer of Players (June 2024 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 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 Regulations on the Status and Transfer of Players (June 2024 edition), and
considering that the present claim was lodged on 17 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
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
Transfer Matching System (TMS).
c. Merits of the dispute
19. Having established the 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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REF. FPSD-15271
i. Main legal discussion and considerations
20. The Chamber then moved to the substance of the matter, and took note of the fact that the
Claimant alleged that he was owed outstanding remuneration.
21. The Chamber next observed that the Claimant satisfactorily established, and it was in any
case undisputed, that a valid employment agreement, the Contract, as well as a separate
agreement for a non-relegation bonus, the Bonus Agreement, existed between the parties.
22. Thereafter, the Chamber noted that the parties disputed whether the Respondent provided
justification for failing to honor its financial obligation on time, as well as what
remuneration was still owed by the Respondent.
23. First, the Chamber observed that the Respondent failed to submit evidence of its purported
justifications for not fulfilling its financial obligations. In addition, the Chamber recalled the
well-established jurisprudence of the Football Tribunal which establishes that financial
difficulties per se do not constitute a valid reason to justify the failure to fulfil contractual
obligations. Therefore, the Chamber determined that it did not need to analyse further
whether the Respondent’s reasons for failing to pay any of the outstanding remuneration
in fact provide a basis for deviating from the principle of pacta sunt servanda.
24. The Chamber’s task therefore was to determine which, if any, remuneration claimed by the
Claimant was in fact owed under the Contract and Bonus Agreement.
25. The Chamber recalled that the Contract provided for the following guaranteed
remuneration that was noted as being outstanding by the Claimant:
-
EUR 36,500 net due 30 March 2024
EUR 36,500 net due 30 April 2024
EUR 38,000 net due 30 May 2024
26. Next, the Chamber recalled that the above amounts went undisputed. Due to not bearing
any additional contingency for payment, and apparently falling due on the dates claimed,
the Chamber concluded that the above amounts should be awarded as outstanding
remuneration to the Claimant as requested, pursuant to the principle of pacta sunt servanda.
27. Furthermore, the Chamber highlighted that the Claimant requested the amounts be paid
net, and since the Contract language indeed specified that the remuneration would be
payable net, the Chamber found that this request should be granted as well.
28. On the other hand, with respect to the additional contingent payments, the Chamber
observed that the Claimant claimed an entitlement to net TRY 1,000,000 bonus for keeping
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REF. FPSD-15271
the Respondent Club in the Turkish Super League, in support of which the Claimant
submitted the Bonus Agreement.
29. The Chamber observed that the Claimant provided no evidence for the events giving rise to
the bonus payment, such as the Club’s ranking at the end of the 2023/2024 season or its
position going into the following season.
30. Accordingly, and notwithstanding the Respondent’s failure to establish any arguments or
evidence to counter the Claimant’s position, the Chamber concluded that the Claimant
failed to discharge the requisite burden of proof pursuant to art. 13 par. 5 of the Procedural
Rules, to show that the alleged contingent payments were in fact triggered and owed to the
Claimant.
ii. Consequences
31. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
32. The Chamber determined that the outstanding remuneration under the Contract coupled
with the specific requests for relief of the player, totalled net EUR 111,000, and was
comprised of the following guaranteed payments:
-
EUR 36,500 net due 30 March 2024
EUR 36,500 net due 30 April 2024
EUR 38,000 net due 30 May 2024
33. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from the day following each respective due date
until the date of effective payment.
iii. Art. 12bis of the Regulations
34. Having established the above, the Chamber referred to art. 12bis par. 2 of the Regulations,
which stipulates that any club found to have delayed a due payment for more than 30 days
without a prima facie contractual basis may be sanctioned in accordance with art. 12bis par.
4 of the Regulations.
35. To this end, the Chamber confirmed that the player put the club in default of payment of
the amounts sought, of which EUR 111,000 had fallen due more than 30 days before, and
granted the club a 10-day deadline to cure such breach of contract.
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REF. FPSD-15271
36. Accordingly, the Chamber confirmed that the club had delayed a due payment without a
prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
37. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the club. On account of the above and bearing in mind
that the Club committed repeated offenses within the last two years, the Chamber decided
to impose a fine on the club in accordance with art. 12bis par. 4 lit. c) of the Regulations.
38. In this connection, the Chamber highlighted that a repeated offence will be considered as
an aggravating circumstance and lead to a more severe penalty in accordance with art. 12bis
par. 6 of the Regulations.
iv. Compliance with monetary decisions
39. 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.
40. 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 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.
41. Therefore, bearing in mind the above, the DRC 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 Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
42. 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.
43. 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.
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REF. FPSD-15271
d. Costs
44. 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.
45. 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.
46. 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-15271
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Nicolas Julio NKoulou Ndoubena, is partially accepted.
2.
The Respondent, Gaziantep Futbol Kulübü A.Ş., must pay to the Claimant the following
amount(s):
- EUR 36,500 net as outstanding remuneration plus 5% interest p.a. as from 31 March
2024 until the date of effective payment;
- EUR 36,500 net as outstanding remuneration plus 5% interest p.a. as from 1 May 2024
until the date of effective payment;
- EUR 38,000 net as outstanding remuneration plus 5% interest p.a. as from 31 May 2024
until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A fine in the amount of USD 52,500 is imposed on the Respondent, which must be paid
to FIFA within 30 days of notification of this decision. Such fine must be paid to the
following bank account with a clear reference to the case FPSD-15271:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230
IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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-15271
7.
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.
8.
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
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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