Labour Disputes
Texto da decisão
REF FPSD-2411
Decision of the
Dispute Resolution Chamber
passed on 8 October 2021
regarding an employment-related dispute concerning the player Gabriel
Antoine Obertan
BY:
Clifford J. Hendel (USA / France), Deputy Chairperson
Tomislav Kasalo (Croatia), member
Daan de Jong (The Netherlands), member
CLAIMANT:
Player Gabriel Antoine Obertan, France
Represented by Mr Alexis Rutman
RESPONDENT:
Club Buyuksehir Belediye Erzurumspor Kulubu, Turkey
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I.
Facts of the case
1.
On 9 August 2019, the French player, Gabriel Antoine Obertan (hereinafter: “the player” or
“the Claimant”) and the Turkish club, Buyuksehir Belediye Erzurumspor Kulubu (hereinafter:
“the club” or “the Respondent”) signed an employment contract (hereinafter: “the contract”)
valid from 9 August 2019 until 31 May 2020.
2.
According to the contract, “In case the club promotes to TFF Super League at the end of
2019/2020 season, this employment contract will be extended automatically for the
2020/2021 season”.
3.
On 13 August 2020, the parties concluded an amendment to the contract (hereinafter: “the
amendment”) changing the financial conditions of the contract for the season 2020/2021,
i.e. a reduction of the remuneration.
4.
Article 3 a) of the amendment stated that the player´s salary agreed in the contract amounted
to EUR 400,000 and is reduced to the total amount of EUR 285,000 payable in 10 monthly
and consecutive instalments of EUR 28,500 each from September 2020 until June 2021.
5.
Article 3 b) of the amendment stated that the player was entitled to receive a down payment
amounting to EUR 350,000 in accordance to the contract and that it was reduced to EUR
300,000 payable on or before 30 August 2020.
6.
Article 4 of the amendment stated that in case the club would fail to pay the full amount of
salaries on time (cf. article 3 a) of the amendment) “for the salaries scheduled between
30.09.2020 until 28.02.2021”, the club would have to pay a penalty amounting to EUR 5,000
for every monthly salary taking into account the effort of the player in reducing his
remuneration.
7.
By correspondence dated 9 march 2021, the Claimant put the Respondent in default of
payment of the total amount of EUR 244,000 as outstanding remuneration (cf. art. 12bis
RSTP), which was composed by part of the season down payment and penalties, granting 15
days to the club to remedy its default, to no avail.
8.
On 29 March 2021, the player sent a second default notice to the club requesting the total
amount of EUR 244,000 (cf. art. 12bis RSTP) granting the latter 10 additional days to remedy
its default.
9.
After the reception of the second default notice, the club made the following payments for
a total amount of EUR 87,000:
EUR 27,000 on 16 April 2021;
EUR 30,000 on 21 April 2021 and
EUR 30,000 on 22 April 2021.
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II. Proceedings before FIFA
10. On 30 April 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
11. According to the Claimant, the Respondent maintained outstanding amounts based on the
amendment.
12. In particular, the Claimant argued that the Respondent owed him outstanding monthly
salaries, a balance of the down payment and a penalty based on the amendment.
13. The player explained that the club paid the monthly salaries from September 2020 to
December 2020 with delay and that the salaries of January and February 2021 remain unpaid.
14. Moreover, the player argued that the payments made by the club in April 2021 correspond
to the down payment due on 30 August 2020. As a result, the player argued that the club
made said payments with 8 months of delay. In this respect, the player explained that at the
moment of the first default notice the club owed him the amount of EUR 157,000 as balance
of the down payment. Therefore, taking into account the partial payments for a total amount
of EUR 87,000, the club still owes him EUR 70,000 as down payment
15. The requests for relief of the Claimant, was the total amount of EUR 185,500 broke down as
follows:
1) EUR 70,000 as balance of the down payment;
2) EUR 85,500 (EUR 28,500 x 3) as outstanding monthly salaries from January until March
2021 and
3) EUR 30,000 as penalty for the club´s delay in paying six monthly salaries.
16. In addition, the player requested the application of an annual interest at a rate of 5%
applicable on the aforementioned amounts as from the respective due dates, i.e. down
payment as from 30 August 2020 and monthly salaries and penalties as from the last day of
the respective month.
17. Furthermore, the player requested the imposition of sporting sanctions, inter alia, art. 12bis
RSTP.
b. Position of the Respondent
18. The club argued having paid to the player the total amount of EUR 250,000 as down
payment, i.e.:
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1) EUR 91,500 on 2 December 2020;
2) EUR 8,500 on 31 December 2020;
3) EUR 43,000 on 8 January 2021;
4) EUR 27,000 on 16 April 2021;
5) EUR 30,000 on 21 April 2021;
6) EUR 30,000 on 22 April 2021 and
7) EUR 20,000 on 4 May 2021.
19. Taking into account the aforementioned payments, the club claimed owing a balance of EUR
50,000 to the player as down payment.
20. With regard to the penalties, the club claimed that are not applicable since it paid the monthly
salaries on time. The club enclosed the alleged following payments with some remarks:
8) EUR 28,500 on 5 October 2020. The club claimed that this payment was made to the player
via bank transfer related to October 2020. Therefore the monthly salary of October 2020 was
allegedly paid in advance;
9) EUR 28,500 on 2 December 2020. The club claimed that this payment was made to the
player via bank transfer and indicates as reason “Salary of December 2020”. Therefore the
monthly salary of December 2020 was allegedly paid in advance;
10) EUR 57,000 on 8 January 2021 and
11) EUR 28,500 on 4 March 2021.
21. The club claimed that the penalty requested by the player is disproportionate since it
represents 25% of the monthly salary and therefore it should be decreased at the discretion
of the deciding body.
22. In sum, the club requests:
a) To determine that the overdue amounts in terms of down payment is EUR 50,000;
b) To determine that penalty amounts for October 2020 and December 2020 salaries did not
accrue due to the fact that the payments of the concerned salaries have been made in
advance;
c) To determine that penalty amounts for late payment of September 2020, November 2020,
January 2021 salaries and non-payment of February 2021 salary are left with no binding
effect due to the disproportionate nature of the penalties concerned.
23. Alternatively, and only in the event that the Dispute Resolution Chamber decided that the
penalties concerned are not disproportionate and thus fully enforceable, the club requests:
d) To determine that penalty amounts for the late payment of September 2020, November
2020, January 2021 salaries and non-payment of February 2021 salary shall be decreased
at the discretion of the Dispute Resolution Chamber.
III. Considerations of the Dispute Resolution Chamber
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a. Competence and applicable legal framework
24. First of all, the Dispute Resolution Chamber (hereinafter also referred to as “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 30 April 2021 and submitted
for decision on 8 October 2021. Taking into account the wording of art. 34 of the October
2021 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.
25. 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 lit. b) of the
Regulations on the Status and Transfer of Players (August 2021 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.
26. Consequently, 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 Player (August 2021 edition), and
considering that the present claim was lodged on 30 April 2021, the February 2021 edition
of said regulations (hereinafter: “the Regulations”) is applicable to the matter at hand as to
the substance.
b. Burden of proof
27. 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
28. 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.
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i. Main legal discussion and considerations
29. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note that it remains uncontested by the parties that on 9 August 2019 they
concluded the contract valid until 31 May 2020 with the possibility to extend it for one more
season (i.e. 2020/2021 season) in case the club would be promoted to the TFF Super League.
30. Moreover, it also remains uncontested by the parties, having concluded on 13 August 2020
the amendment by means of which the player´s remuneration was reduced as follows:
Total salary: from EUR 400,000 to EUR 285,000 payable in 10 monthly and
consecutive instalments of EUR 28,500 each from September 2020 until June 2021
and
Down payment: from EUR 350,000 to EUR 300,000 payable on or before 30
August 2020.
31. At this stage, the Chamber recalled that the Claimant lodged the present claim requesting
outstanding remuneration (salaries and balance of the down payment) and a penalty all based
on the amendment.
32. Subsequently, the Chamber focused its attention to the Respondent´s allegations. First and
with regard to the monthly salaries requested by the Claimant (January, February and March
2021), the DRC noted that the Respondent argued having paid the relevant monthly salaries
without delay.
33. With regard to the balance of the down payment requested by the Claimant, the Respondent
alleged having already paid the amount of EUR 250,000 owing to the player a balance of EUR
50,000.
34. In this context, the Chamber was keen to emphasise that all the documentary evidence
provided by the Respondent was written in Turkish and not translated into one of the official
FIFA languages in accordance with art. 13 par. 1 of the Procedural Rules.
35. As a result, the DRC stated that this deciding body should disregard the untranslated evidence
presented by the Respondent in accordance with art.13 par. 1 of the Procedural Rules.
36. In this context, the Chamber reiterated 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.
37. Bearing in mind the foregoing, the Chamber underlined that the club bore the burden of
proving that it indeed paid the amounts due to the player in accordance with the amendment
or that it had a valid reason not to have done so.
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38. In light of the above, the DRC concluded that the Respondent failed to prove having paid to
the Claimant the requested remuneration.
ii. Consequences
39. Having stated the above, the Chamber observed that the outstanding salaries requested by
the player, were equivalent to three monthly instalments (cf. article 3a) of the amendment),
amounting to EUR 85,500 and the balance of the down payment was EUR 70,000 (cf. article
3b) of the amendment).
40. The Chamber decided that in accordance with the general legal principle of pacta sunt
servanda, the Respondent has to pay the amount of EUR 155,500 as outstanding
remuneration to the Claimant.
41. 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 respective due dates (i.e. day after the
date of payment) until the date of effective payment.
42. Having stated the above, the Chamber turned its attention to the penalty requested by the
Claimant for EUR 30,000 in accordance with article 4 of the amendment.
43. In this respect, the DRC recalled the content of article 4 of the amendment which states that
in case the club would fail to pay on time the full amount of salaries between the months of
September 2020 and February 2021, the club would have to pay a penalty amounting to EUR
5,000 for every monthly salary taking into account the effort of the player in reducing his
remuneration.
44. In this context, the DRC reiterated that the Respondent failed to prove having paid the
monthly salaries to the Claimant on time.
45. Moreover, the Chamber acknowledged that the Respondent contested the application of the
penalty arguing that it was disproportionate since it allegedly represents 25% of the monthly
salary (i.e. EUR 28,500).
46. In this regard, the DRC pointed out that the penalty in fact represents between 18-19% of
the monthly salary.
47. Furthermore, the DRC was keen to emphasise that by means of the amendment the player
agreed to reduce his remuneration, i.e. total salary: from EUR 400,000 to EUR 285,000 and
down payment: from EUR 350,000 to EUR 300,000.
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48. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of EUR 30,000
to the player, which was to be considered a reasonable and justified amount as penalty for
the delay in paying the player´s salaries from September 2020 until February 2021.
49. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to reject the application of an annual interest over
the penalty.
iii. Compliance with monetary decisions
50. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
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.
51. 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.
52. 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. 24bis par. 2, 4, and 7 of the Regulations.
53. 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.
54. 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. 24bis par. 8 of
the Regulations.
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d. Costs
55. 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.
56. 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.
57. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Gabriel Antoine Obertan, is partially accepted.
2.
The Respondent, Buyuksehir Belediye Erzurumspor Kulubu, has to pay to the Claimant, the
following amounts:
- EUR 155,500 as outstanding remuneration plus 5% interest p.a. as follows:
1) on the amount of EUR 70,000 from 31 August 2020 until the date of effective
payment;
2) on the amount of EUR 28,500 from 1 February 2021 until the date of effective
payment;
3) on the amount of EUR 28,500 from 1 March 2021 until the date of effective payment;
4) on the amount of EUR 28,500 from 1 April 2021 until the date of effective payment.
- EUR 30,000 as penalty.
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. 24bis 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 the ban shall
be of 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.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter 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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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).
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