Labour Disputes
Texto da decisão
REF. FPSD-11231
Decision of the
Dispute Resolution Chamber
passed on 12 October 2023
regarding an employment-related dispute concerning
the player Loic Alex Hubert Remy
BY:
Clifford J. HENDEL (USA), Deputy Chairperson
Michele COLUCCI (Italy), member
Alejandro ATILIO TARABORELLI (Argentina), member
CLAIMANT:
Loic Alex Hubert Remy, France
Represented by Ercan Sevdimbaş
RESPONDENT:
Yukatel Adana Demirspor A.S., Türkiye
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REF. FPSD-11231
I. Facts of the case
1.
On 8 February 2022, the French player Loic Remy (hereinafter: the Claimant or player) and
the Turkish club Adana Demirspor (hereinafter: the Respondent or club) concluded an
employment contract valid as from said date until 31 May 2022.
2.
On 31 March 2023, the Claimant and the Respondent concluded a settlement agreement
(hereinafter: the settlement agreement) having as object the outstanding remuneration
deriving from the parties’ previous employment contract.
3.
Pursuant to the settlement agreement, the Respondent undertook to pay the Claimant a
total of EUR 218,000, broken down as follows:
-
EUR 118,000 due on 7 April 2023;
EUR 50,000 due on 3 June 2023;
EUR 50,000 due on 3 August 2023.
4.
In accordance with art. 1.2 of the settlement agreement, the parties agreed that “if the Club
does not pay any instalment on time, the Club will pay a penalty of EUR 30.000 to the Player for
each payment not paid on the due date. In addition, the parties have agreed that if any
instalment is not paid on due date, all the remaining payments will become due without any
notice”.
5.
By correspondence dated 20 June 2023, the Claimant put the Respondent in default of
payment of EUR 130,000 granting a deadline of 3 days to in order to remedy the default.
6.
In this context, the Claimant reminded the Respondent that having the 3rd instalment
become due by virtue of the acceleration clause stipulated under art. 1.2 of the settlement
agreement, a further penalty of EUR 30,000 would have been imposed on the Respondent
if the latter had not complied with its financial obligation within the following 3 days.
7.
On 23 June 2023, the Respondent paid an amount of EUR 100,000 to the Claimant, and
commented the following:
“As you are well aware we have paid the first instalment amount of 118.000 Euro.
However, we have failed to pay the second instalment on due time. However as of
today we pay you the second and third instalments together (due time 03.06.2023 and
due time 03.08.2023) totally 100.000 Euro (each instalment 50.000 Euro). You can find
the bank receipts on the attachment of the e-mail. You have stated that, there is
30.000 Euro penalty occurs from the late payment, we would kindly like to state that
this penalty clause should be accepted as exorbitant and invalid. As you know, we
have signed the settlement agreement on the last day of licensing of European Cups.
Since we made the first payment late, we think we made up for our mistake by paying
the third instalment about 1,5 months early. The reason we are late for the payment
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REF. FPSD-11231
are the earthquake, the Parliamentary elections, president elections and the
problematic of exchange of foreign money currencies.”
II. Proceedings before FIFA
8.
On 4 August 2023, the Claimant lodged the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
9.
According to the Claimant, the Respondent failed to comply with its financial obligations
deriving from the settlement agreement, namely with respect to the 2nd instalment.
10. In this context, the Claimant held that accordingly the relevant acceleration clause
stipulated under the settlement agreement had been triggered as well as the penalties
thereto connected, hence the Respondent should have paid a total of EUR 130,000 within
the deadline granted by the Claimant, corresponding to the 2nd and 3rd instalments and the
relevant penalty for the delay in the payment of the 2nd instalment.
11. In this respect, the Claimant added that, having the Respondent failed to pay part of the
above-mentioned amount, also the payment of the 3rd instalment could not be deemed as
fully realized within the due time, hence a further penalty of EUR 30,000 shall be imposed
on the Respondent in line with art 1.2 of the settlement agreement.
12. Accordingly, the request for relief by the Claimant was of EUR 60,000 as outstanding
penalty fees plus a 5% interest per annum running from 3 June 2023.
b. Position of the Respondent
13. In its reply, the Respondent argued having acted in good faith first by paying the 2nd
instalment just 3 days after the default notice sent by the Claimant on 20 June 2023, and
subsequently by paying the relevant 3rd instalment 45 days before the due date stipulated
under the settlement agreement.
14. In this respect, the Respondent stated having had several financial problems due to the
catastrophic seismic events that had occurred in the Adana region during the spring of
2023, which led to a consequent paralysis of the Turkish economy.
15. Consequently, the Respondent held that it should not be held liable for an exiguous delay
in the payment of the 2nd instalment only, especially as it complied inter alia with the
relevant acceleration clause under the settlement agreement by paying the 3rd instalment
immediately after.
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REF. FPSD-11231
16. Subsidiarily, the Respondent prayed that if any penalty has to be paid, its amount shall be
reduced because excessive as corresponding to more than 50% of each remaining
instalment. In this respect, the Respondent requested that the penalty fee shall be reduced
to a total of 10% of the delayed amounts.
17. Finally, the Respondent requested that if the penalty clause was not considered excessive,
said penalty shall be imposed only with respect to the 2nd instalment, as this was the only
one paid late, while the 3rd instalment has been paid more than one month in advance, in
compliance with the relevant settlement agreement.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. 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 4 August 2023 and submitted
for decision on 12 October 2023. 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.
19. 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 May 2023 edition, the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a French player and a Turkish
club.
20. 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 (May 2023 edition), and
considering that the present claim was lodged on 4 August 2023, the abovementioned
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
21. 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
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REF. FPSD-11231
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
22. 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
23. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the monies due by the
Respondent under the relevant settlement agreement.
24. In particular, the Chamber observed that while the parties agree on the fact that the
Respondent was late in paying of the 2nd instalment originally due on 3 June 2023 and
effectively remitted by the Respondent only on 23 June 2023, the latter objects to the
imposition of the relevant penalties indicated under art. 1.2 of the settlement agreement,
alleging in primis having suffered severe financial difficulties due to the earthquakes that
hit Türkiye during the first semester of 2023.
25. In this context, the DRC also noted that the Respondent did not contest the validity of the
acceleration clause contained in the same art. 1.2 of the settlement agreement, arguing
however having paid the relevant outstanding instalments simultaneously and within the
deadline given by the Claimant, thus acting in good faith and in accordance with the
aforementioned settlement agreement.
26. In this respect, given that it stands undisputed from a factual perspective that the
Respondent paid all the relevant instalments stipulated under the settlement agreement,
the Chamber acknowledged that it its task was to establish whether the assessed delay in
the payment of the 2nd instalment would entitle the Claimant to charge any penalty, hence
to demand any further amount, to be paid by the Respondent.
27. With the foregoing in mind, the Chamber started by analysing the content of the relevant
provision under the settlement agreement, i.e. art. 1.2, which recites:
“If the Club does not pay any instalment on time, the Club will pay a penalty of EUR
30.000 to the Player for each payment not paid on the due date. In addition, the
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REF. FPSD-11231
parties have agreed that if any instalment is not paid on due date, all the remaining
payments will become due without any notice”.
28. In this respect, the members of the Chamber were unanimous in establishing that the only
condition to which the parties subjected the payment of the relevant penalty of EUR 30,000
was the mere delay in the payment of any of the 3 instalments stipulated under the
settlement agreement.
29. Contextually, the Chamber also recalled that the Respondent did not contest that, in
principle, it shall be held liable for the payment of the relevant penalty due to the admitted
delay in the payment of (at least) the 2nd instalment, but that it conversely objected having
faced unpredictable circumstances (i.e., the earthquakes) which allegedly caused the
mentioned delay as these were not depending on club’ sphere of control.
30. The Chamber however noted that, in the case at hand, the Respondent bore the burden of
proving that it indeed was materially unable to comply with the financial terms of the
contract concluded between the parties, quod non. Accordingly, absent such evidence and
any further reasonable justification provided by the Respondent for not having complied
with the terms of the contract, the DRC decided that its position could not be upheld.
31. As a consequence, the members of the Chamber confirmed that, based on art. 1.2 of the
settlement agreement, and in accordance with the general legal principle of pacta sunt
servanda, the Respondent shall be held liable for its delay in the payment of the relevant
instalments.
32. Notwithstanding the above, the Chamber noted the content of the Claimant’s default
notice dated 20 June 2023, by means of which the latter first demanded the Respondent to
pay the sum of EUR 130,000 in accordance with art. 1.2 of the settlement agreement and
then warned the same Respondent that, had the latter not complied with its financial
obligation within the following 3 days, a further penalty of EUR 30,000 would have been
imposed by the Claimant.
33. Based on the wording of the mentioned letter, and focusing in particular on the amounts
requested by the Claimant, it appears evident to the members of the Chamber that the
intention manifested at the time by the Claimant was to impose a penalty on the 2nd
instalment only, otherwise he would have not granted any further deadline to the
Respondent.
34. Accordingly, in the Chamber’s view, the Claimant’s conduct openly contradicted his claim
and generated diverging expectations in the Respondent, who de facto was not put in
default of the 2nd penalty fee until the notification of the relevant proceeding in front of
FIFA.
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REF. FPSD-11231
35. In view of the above, and recalling the principle of “nemo venire contra facta propria”, the
members of the DRC decided that the Respondent shall pay only the penalty fee related to
the delay of the 2nd instalment established under the settlement agreement.
36. That said, the Chamber focused its attention on the said penalty fee and considered
appropriate to preliminary remark, on a general level, that penalty clauses may be freely
entered into by the contractual parties and may be considered acceptable, in the event
that the pertinent written clause meets certain criteria such as proportionality and
reasonableness. In this respect, the Chamber highlighted that, in order to determine
whether a penalty clause is to be considered acceptable, the specific circumstances of the
relevant case brought before him shall also be taken into consideration.
37. In this context, the Chamber also emphasized that a reduction of the relevant penalty may
be justified when there is a significant disproportion between the agreed amount and the
interest of the creditor to maintain his entire claim, measured concretely at the moment
when the contractual violation took place. Disproportion must significantly exceed the
limits of what appears to be normal in light of all circumstances. To evaluate the excessive
character of a contractual penalty, the DRC highlighted that it must not decide in an
abstract manner, but, to the contrary, take into consideration all the circumstances of the
case at hand.
38. With the foregoing in mind, the Chamber outlined that in the present case, the penalty
stipulated under article 1.2 of the settlement agreement is indeed corresponding to a 60%
of the relevant instalment which payment was delayed (i.e., 2nd instalment).
39. As a result, the members of the DRC considered that, in the context of the total outstanding
amount and the time it was overdue, such a penalty fee would not result proportionate,
hence it shall be reduced to a 50% of the relevant amount which was delayed, i.e. EUR
50,000.
40. As a consequence, 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 sum of EUR
25,000 as penalty fee for the delay in the payment of the 2nd instalment stipulated under
the settlement agreement.
41. Finally, with respect to the Claimant’s request to apply 5% interest p.a. on the penalty fee,
the Chamber determined that, in accordance with the longstanding jurisprudence of the
FIFA deciding bodies, interest on penalty fees do not apply. Consequently, the DRC
dismissed the Claimant’s request on that point.
ii. Compliance with monetary decisions
42. 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
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REF. FPSD-11231
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.
43. 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.
44. 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.
45. 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.
46. 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.
d. Costs
47. 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.
48. 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.
49. 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-11231
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Loic Alex Hubert Remy, is partially accepted.
2.
The Respondent, Yukatel Adana Demirspor A.S., must pay to the Claimant the following
amount(s):
EUR 25,000 as penalty fee.
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. 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.
6.
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.
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 Governing the Football
Tribunal).
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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