Labour Disputes
Texto da decisão
REF. FPSD-13730
Decision of the
Dispute Resolution Chamber
passed on 7 May 2024
regarding an employment-related dispute concerning
the player Kevin Manuel Rodrigues
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Laurel Vaurasi (Fiji), member
Angela Collins (Australia), member
CLAIMANT:
Kevin Manuel Rodrigues, France & Portugal
Represented by Normand-Avocat
RESPONDENT:
Adana Demirspor AS, Türkiye
Represented by Mr Umur Varat and Ms Aygin Kuruloğlu
pg. 2
REF. FPSD-13730
I. Facts of the case
1.
On 29 December 2023, the French-Portuguese player Kevin Manuel Rodrigues (hereinafter:
Claimant or player) and the Turkish club Adana Demirspor AS (hereinafter: club or
Respondent) signed a mutual termination agreement based on which the previous
employment contract between the parties was mutually terminated (hereinafter:
Settlement).
2.
According to the Settlement, the Respondent undertook to pay the Claimant a total amount
of EUR 550,000 net, representing outstanding salaries and compensation from the
previously terminated employment contract, payable as follows:
-
3.
Furthermore, the Settlement stipulated under art. 2 that “Should the Club fail to pay timely
to the Player any of the net sums stipulated in the payment schedule set above herein due to
any and all reasons after a grace period of 15 business days, the Club shall become immediately
liable to pay to the Player the total amount of the Agreement in addition to a contractual penalty
set as follows:
-
4.
EUR 150,000 net by no later than 30 January 2024;
EUR 150,000 net by no later than 30 March 2024;
EUR 250,000 net by no later than 30 May 2024.
EUR 40,000 net if the club has not paid the first instalment by the deadline;
EUR 20,000 net if the club has not paid the second instalment by the deadline;
EUR 20,000 net if the club has not paid the third instalment by the deadline.”
On 6 February 2024, the Claimant put the Respondent in default and requested payment
of EUR 150,000, stating that he “[looked] forward to receiving the proof of payment”.
II. Proceedings before FIFA
5.
On 19 February 2024, 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
6.
The Claimant’s request concerned overdue payables.
7.
According to the Claimant, the Respondent failed to remit the first instalment of
EUR 150,000 net under the Settlement on time as stipulated by the Settlement, triggering
the acceleration clause contained in art. 2 as well as a contractual penalty of
EUR 40,000 net.
pg. 3
REF. FPSD-13730
8.
The Claimant emphasised that the contractual penalty was entirely proportionate and that
the formal requirements were met, as it had sent a formal notice and allowed a grace
period of at least 15 days to remedy the breach.
9.
Consequently, the Claimant requested EUR 550,000 net as a principal amount, as well as
EUR 40,000 net as a contractual penalty – without any accompanying interest.
b. Position of the Respondent
10. According to the Respondent, the Claimant failed to meet the formal requirements of the
acceleration clause and contractual penalty as no formal grace period of 15 days was
granted in the default notice of 15 business days.
11. The Respondent equally justified its failure to pay the due amounts on account of the
financial consequences of the earthquake in Türkiye that took place on 8 February 2023
which caused a depreciation of the Turkish Lira.
12. The Respondent therefore requested that the claim be rejected in full, or alternatively that
only the first instalment of EUR 150,000 net be ordered (i.e. dismissing the acceleration and
penalty clause(s)).
pg. 4
REF. FPSD-13730
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. 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 19 February 2024 and
submitted for decision on 7 May 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.
14. 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 February 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 FrenchPortuguese player and a Turkish club.
15. 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 (February 2024 edition), and
considering that the present claim was lodged on 19 February 2024, the February 2024
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
16. 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
17. 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.
pg. 5
REF. FPSD-13730
i. Main legal discussion and considerations
18. 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 payment of certain
financial obligations under the Settlement.
19. On one hand, the Chamber observed that the Claimant denounced the Respondent for
failing to remit the first instalment of EUR 150,000 net on time, despite having been
provided with an adequate grace period, thus triggering both an acceleration clause as well
as a contractual penalty of EUR 40,000 net.
20. On the other hand, the Chamber referred to the submission of the Respondent, who
rejected the notion that a grace period was provided by the Claimant, which should result
in the non-application of both the acceleration clause and penalty clause under the
Settlement. The Respondent equally acknowledged that the first instalment remained
outstanding to this day, however, justified this with a case of force majeure and financial
difficulty caused by the earthquake which took place in Türkiye on 8 February 2023.
21. Having outlined the above, the Chamber acknowledged that it its task was to determine
whether or not the Respondent’s justification for failing to pay the amounts on time was
valid, and subsequently, whether the ramifications of the present case were as such that
the acceleration and penalty clause(s) under the Settlement were triggered.
22. With this in mind, the Chamber firstly addressed the argument provided by the Respondent
as to its failure to remit the first instalment of EUR 150,000 net on time.
23. In this respect, the Chamber expressed its empathy with the Respondent’s situation
concerning the earthquake that had taken place in Türkiye. Notwithstanding, concerning
the present proceedings, the Chamber was compelled to point out that the Respondent
failed to adequately corroborate its inability to pay the contractually stipulated amounts as
a result of any alleged financial difficulties.
24. This argumentation was further supported by the fact that the Settlement had been
concluded quite some time after the events causing such purported state of force majeure
had taken place, which in turn suggested that the Respondent could have anticipated its
(in)ability to comply with the financial obligations agreed therein.
25. Consequently, the Chamber dismissed the reasoning of the Respondent and concluded
that there had been no valid justification to contravene the well-established principle of
pacta sunt servanda in the case at hand.
26. Having said this, the Chamber continued with the question of whether the acceleration
and/or penalty clause had been activated in the present case.
pg. 6
REF. FPSD-13730
27. The Chamber recalled the relevant wording of art. 2 under the Settlement, which stated as
follows:
“Should the Club fail to pay timely to the Player any of the net sums stipulated in the payment
schedule set above herein due to any and all reasons after a grace period of 15 business days,
the Club shall become immediately liable to pay to the Player the total amount of the Agreement
in addition to a contractual penalty set as follows:
-
EUR 40,000 net if the club has not paid the first instalment by the deadline;
EUR 20,000 net if the club has not paid the second instalment by the deadline;
EUR 20,000 net if the club has not paid the third instalment by the deadline.”
28. Having closely analysed the wording of said provision, the Chamber assessed the facts of
the case and recalled that the first instalment fell due on 30 January 2024 and in order for
such provisions to apply, a grace period of 15 business days had to be awarded by the
Claimant. This means that the last day on which the Respondent had to make the payment
was 19 February 2024 (the date the present claim was lodged).
29. Equally, the Chamber noted that the Respondent affirmed that the amount in dispute (i.e.
the aforementioned instalment) remained unpaid even beyond said date. The Chamber
emphasised in this respect that, if the Respondent indeed wished to mitigate any doubts
as to the application of the acceleration clause due to any grace period, it may have
deemed it diligent to remit the first instalment by the time the present decision was
rendered.
30. Not least, the Claimant put the Respondent in default accordingly on 6 February 2024. The
Chamber considered that the lack of a formal deadline in such communication did not
detract from the reality that the effective grace period already commenced on the day
following the due date of the first instalment.
31. Consequently, the Chamber was able to conclude that the formal requirements for the
application of the acceleration clause were met in the case at hand, and that the
Respondent was obligated to remit the entire amount agreed upon under the Settlement
at once.
32. Lastly, having established the above, the Chamber considered the application of the
penalty clause in the case at hand.
33. In this respect, the Chamber considered the amount of the penalty (EUR 40,000 net for
failing to pay the first instalment on time) in proportion to 1) the instalment triggering such
clause and 2) the total remaining amount under the Settlement.
pg. 7
REF. FPSD-13730
34. In light of the above criteria, the Chamber opined that the contractually stipulated penalty
of EUR 40,000 net was entirely proportionate. More specifically, the penalty amounted to
less than 30% of the instalment triggering its application, and 10% of the overall sum due
after the application of the acceleration clause.
35. Consequently, in addition to the acceleration clause outlined above, the contractual
penalty of EUR 40,000 net was equally payable by the Respondent.
36. In conclusion, therefore, and in application of the principle of pacta sunt servanda, the
Claimant was entitled to receive a payment of EUR 550,000 net as a principal outstanding
amount, as well as EUR 40,000 net as a contractual penalty from the Respondent.
37. Lastly, considering that the Claimant did not request any interest on the amounts
mentioned above, in accordance with the principle of ne iudex eat ultra petita, no interest
was awarded in the case at hand.
ii. Compliance with monetary decisions
38. 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.
39. 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.
40. 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.
41. 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.
42. 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.
pg. 8
REF. FPSD-13730
d. Costs
43. 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.
44. 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.
45. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 9
REF. FPSD-13730
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Kevin Manuel Rodrigues, is accepted.
2.
The Respondent, Adana Demirspor AS, must pay to the Claimant the following amount(s):
- EUR 550,000 net as outstanding remuneration;
- EUR 40,000 net as contractual penalty.
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
pg. 10
REF. FPSD-13730
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
pg. 11