DRC Overdue Payables
Texto da decisão
REF FPSD-2872
Decision of the
Dispute Resolution Chamber
passed on 8 October 2021
regarding an employment-related dispute concerning the player Johanna
Omolo
BY:
Clifford J. Hendel (USA / France), Chairperson
Tomislav Kasalo (Croatia), member
Daan de Jong (The Netherlands), member
CLAIMANT:
Johanna Omolo, Kenya
Represented by Mr Selçuk Demir
RESPONDENT:
Buyuksehir Belediye Erzurumspor, Turkey
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REF FPSD-2872
I.
Facts of the case
1.
On 14 January 2021, the Kenyan player, Johanna Omolo (hereinafter: the player or the
Claimant) and the Turkish club, Buyuksehir Belediye Erzurumspor (hereinafter: the club or the
Respondent) concluded an employment contract (hereinafter: the contract), valid as from the
date of its signature until 31 May 2021.
2.
Clause 3 of the contract provides the player´s remuneration during the 2020/2021 season,
including -inter alia-, the following financial entitlements:
-
3.
EUR 30,000 by 15 January 2021 as advance payment (1st lump sum);
EUR 20,000 by 20 January 2021 as advance payment (2nd lump sum);
EUR 2,500 by 29 January 2021 as housing allowance;
EUR 31,250 by 28 February 2021, as salary;
EUR 31,250 by 30 March 2021;
EUR 31,250 by 30 April 2021;
EUR 31,250 by 30 May 2021.
By means of his correspondence dated 25 April 2021, the player put the club in default of
payment in the amount of EUR 62,500 -corresponding to the salaries of February and March
2021-, thereby granting the Respondent a 15 days’ deadline to remedy the default; however,
to no avail.
II. Proceedings before FIFA
4.
On 22 June 2021, the player lodged a claim against the club before FIFA.
a. Position of the Claimant
5.
In his claim, the Claimant is requesting to be awarded outstanding remuneration and
compensation for breach of contract in the total amount of EUR 287,500, plus 5% interest
p.a. to be paid as from the 30th day following the notification of the findings of the decision,
amount broken down by the player as follows:
-
Outstanding remuneration: EUR 100,000 corresponding to the unpaid part of the months
due to the player, i.e. as from February until May 2021 (note: no further breakdown
provided by the Claimant in this regard);
-
Compensation for breach of contract: EUR 187,500, allegedly ex. art. 17 para. 1 of the
RSTP, corresponding to 6 monthly salaries (31,250*6 = 187,500).
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REF FPSD-2872
6.
In his claim, the player explained that despite the player having complied with his contractual
obligations towards the club, the latter failed to pay his salaries.
7.
In this respect, the player highlighted that, on 25 April 2021, he put the club in default of
payment regarding the salaries of February and March 2021, but the club failed to reply to
the said default notice and to remedy the default.
8.
In this context, the player explained that -on top of the salaries that are outstanding, i.e. the
salaries due for the months as from February until May 2021-, he shall be entitled to a
compensation for damages in an amount equal to 6 monthly salaries, i.e. the total amount
of EUR 187,500.
9.
In this respect, the player requested the following circumstances to be considered when
determining the compensation to which he is supposedly entitled: the fact that he has 2
children to take care of, that he has not been able to find a new club following the
termination / expiration of his contract and that his value as player has decreased.
b. Position of the Respondent
10. In its reply to the claim, the club argued that -following the Covid-19 pandemic, to which the
club referred as a situation of force majeure- the club underwent a situation of financial
distress that prevented it from complying with its financial obligations. Moreover, the club
held that it was relegated to a lower league at the end of the 2020/2021 season, which had
an impact on its “broadcasting income”. Furthermore, the club referred to the fluctuation of
the Turkish economy as another event that had a negative financial impact on its budget.
11. The aforementioned being said, the club stated that the claim of the Claimant to be awarded
an additional compensation shall be rejected, insofar the contract was not terminated by any
of the parties, but organically expired on 31 May 2021. Therefore -held the club- “there are
no grounds for applying FIFA RSTP 14 bis and 17”, since the club “should not be in a position
to pay compensation”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. First of all, the Dispute Resolution Chamber (hereinafter also referred to as 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 22 June 2021 and submitted for decision
on 8 October 2021. Taking into account the wording of art. 34 of the October 2021 edition
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REF FPSD-2872
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. 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 Kenyan player and a
Turkish club.
14. 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 Player (August 2021 edition), and
considering that the present claim was lodged on 22 June 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
15. 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
16. 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.
i. Main legal discussion and considerations
17. The foregoing having been established, the Chamber moved to the substance of the matter,
and briefly recalled the positions of the Claimant. In doing so, the Chamber firstly observed
that the Claimant is requesting to be awarded outstanding remuneration and compensation
for breach of contract, the latter of which the Claimant requests as damages, referring to art.
17.1 lit ii of the Regulations, i.e. the additional compensation, in the total amount of EUR
287,500, plus 5% interest p.a. as from the 30th day following the notification of the findings
of the decision to the parties.
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18. The positions of both parties having been analysed, the Chamber took note of the fact that
it remained uncontested by the Respondent that it failed to pay the amounts requested by
the player as outstanding remuneration, i.e. EUR 100,000, despite the club carrying the
burden of the proof to demonstrate that it paid to the player his salaries due ex. art. 13.5 of
the Procedural Rules.
19. Thus, in view of the fact that the player requested to be paid his salaries due for the period
as from March until May 2021 in the amount -calculated by the player- of EUR 100,000,
entitlement that finds a contractual basis in the contract, the DRC decided that, in application
of the legal principle, pacta sunt servanda, the player shall be awarded EUR 100,000 as
outstanding remuneration.
20. As to the interest to be awarded to the player regarding the outstanding remuneration
awarded, the Chamber wished to explain that, considering that the player failed to allocate
to which months the amount of EUR 100,000 corresponds -taking into account that the
Claimant is stating that the monthly salaries as from March until May 2021 were not paid
and that, if summed up, those salaries exceed the amount of EUR 100,000 requested- it is to
be determined that the player should, in principle, be granted default interest of 5% p.a. as
from the date on which the claim was lodged.
21. Nevertheless, continued the DRC, since -in its specific petitum- the player requested the
default interest to be awarded as from the 30th day following the issuance of the findings of
the decision, the Chamber decided that the default interest shall be granted considering the
requested benchmark, in order not to incur in ultra petita.
22. In connection with the compensation for breach of contract requested by the Claimant, which
is requested on the grounds of the damages allegedly suffered by the player (cf. point 8 of
the summary) in an amount equal to 6 monthly salaries as per the contract, the petitum of
the Claimant is to be rejected; the reason of the aforementioned being that -as held by the
Respondent- no termination of the contract ever occurred, since -as per the allegations of
both parties- the contract naturally expired on 31 May 2021. Thus, explained the Chamber,
neither a compensation for breach of contract nor an additional compensation can be granted
to the player ex. art. 17 of the RSTP.
23. As to the eventual entitlement of the player to receive a compensation for damages, excluding
the application of the referred art. 17 of the Regulations, it must be noted that the said claim
finds neither a contractual basis nor a regulatory basis. Hence, any claim of the Claimant in
connection with his entitlement to receive a compensation (for breach of contract or for
damages) is to be rejected, determined the Chamber.
ii. Consequences
24. Having stated the above, the members of the Chamber turned their attention to the question
of the consequences of such unjustified breach of contract committed by the Respondent.
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25. In view of the above-mentioned considerations and in accordance with the general legal
principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay
to the Claimant the amounts which were outstanding under the contract once the contractual
relationship had naturally expired on 31 May 2021, i.e. EUR 100,000.
26. 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 11 November 2021 (i.e., the 30th day
following the issuance of the findings of the decision) until the date of effective payment.
iii. Compliance with monetary decisions
27. The above being said, the Chamber referred to art. 12bis of the Regulations, in accordance
with which 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 paragraph 4 thereof,
should the creditor have put the debtor club in default in writing and have granted a deadline
of at least ten days for the debtor club to comply with its financial obligations. In this context,
the DRC acknowledged that the requirements set by art. 12bis of the Regulations were met
in the matter at hand.
28. Consequently, the Chamber referred to art. 12bis para. 4 of the Regulations and determined
that a penalty in the amount of USD 10,000 should be imposed on the Respondent, which
the DRC considered as a reasonable amount as penalty, considering the amount in dispute,
i.e. EUR 100,000, and that the Respondent had been imposed a warning and a reprimand in
proceedings held in front FIFA within the last 2 years, where it was decided that the
requirements set by art. 12bis of the Regulations had been met, i.e. proceedings FPSD-2612
(decision passed on 14 July 2021, where the Respondent was imposed a warning) and FPSD3040 (decision passed on 18 August 2021, where the Respondent was imposed a reprimand).
29. 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.
30. 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.
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31. 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.
32. 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.
33. 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.
d. Costs
34. 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.
35. 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. Lastly, the DRC concluded its deliberations by rejecting any other requests
for relief made by any of the parties.
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Johanna Omolo, is partially accepted.
2.
The Respondent, Buyuksehir Belediye Erzurumspor, has to pay to the Claimant, the following
amount:
- EUR 100,000 as outstanding remuneration plus 5% interest p.a. as from 11 November
2021 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.
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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.
8. The
Respondent
is
ordered
to
pay
a
fine
in
the
amount
of
USD 10,000. The fine is to be paid within 30 days of notification of the present decision to
FIFA to the following bank account with reference to case nr. FPSD-2872/jaa:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230
IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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.
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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).
CONTACT INFORMATION
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