DRC Overdue Payables
Texto da decisão
REF FPSD-6286
Decision of the
Dispute Resolution Chamber
passed on 27 October 2022
regarding an employment-related dispute concerning the player Isaac Sackey
COMPOSITION:
Lívia Silva Kägi (Brazil), Acting Deputy Chairperson
Johan van Gaalen (South Africa), member
Mario Flores Chemor (Mexico), member
CLAIMANT:
Isaac Sackey, Ghana
Represented by Pedro Macieirinha
RESPONDENT:
Hatayspor, Turkey
Represented by Ismail Coşkun
REF FPSD-6286
I. Facts of the case
1.
On an unspecified date, the Ghanaian player, Isaac Sackey (hereinafter: the Claimant), and
the Turkish club, Hatayspor (hereinafter: the Respondent) signed an employment contract
valid for the 2021/2022 season.
2.
According to the information available in the FIFA Transfer Matching System (TMS), the
2021/2022 season starts on 1 July 2021 and ends on 31 May 2022.
3.
Pursuant to article 3 of the contract, the Claimant is entitled to the following remuneration:
(a) For the season 2021/2022
-
EUR 35,000 on 31 August 2021
EUR 35,000 on 30 September 2021
EUR 35,000 on 31 October 2021
EUR 35,000 on 30 November 2021
EUR 35,000 on 31 December 2021
EUR 35,000 on 31 January 2022
EUR 35,000 on 28 February 2022
EUR 35,000 on 31 March 2022
EUR 35,000 on 30 April 2022
EUR 35,000 on 31 May 2022
4.
In addition to the above, the Claimant alleged that the president of the Respondent
expressed in a WhatsApp correspondence that the Claimant would be entitled to be paid
“EUR 75,000 as per match bonus.”
5.
On 27 May 2022 the Claimant sent a default notice to the Respondent requesting payment
of his outstanding salaries for the months of February 2022 until May 2022 as well as for a
payment relating to a match bonus, granting it a deadline of 15 days to comply with
payment thereof, however to no avail.
II. Proceedings before FIFA
6.
On 7 June 2022, 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
7.
According to the Claimant, the Respondent failed to comply with its contractual financial
obligations.
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8.
The requests for relief of the Claimant, were that the Respondent pay his outstanding
remuneration in the total amount of EUR 215,000, which corresponds to the monthly
salaries of February 2022 until May 2022 in the amount of EUR 35,000 each and EUR 75,000
as per match bonus plus 5% interest p.a. from the respective due dates until date of
effective payment
9.
Additionally, the Claimant requested that sporting and disciplinary sanctions be imposed
on the Respondent.
b. Position of the Respondent
10. In reply to the claim, the Respondent addressed the WhatsApp correspondence submitted
by the Claimant and stipulated the following:
“In the claim lodged against our client, the Claimant submitted a screenshot of a WhatsApp
conversation. It is claimed that this conversation submitted has taken place between the
Claimant and President of our client club Hatayspor.
First of all, there are neither names nor a date on the screenshot given in the petition of the
Claimant. Therefore, it is impossible to say when and between who the conversation took
place. This conversation has not been confirmed by our client club as well.
Apart from that, even if we accept that the conversation submitted took place between the
Claimant and our client, there are no commitments made by client club other than the ones
made in the Professional Football Employment Contract between the Claimant and our client.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 7 June 2022 and submitted for
decision on 27 October 2022. Taking into account the wording of art. 34 of the October
2022 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.
2.
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 October 2022 edition, the Dispute
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Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Ghanaian player
and a Turkish club.
3.
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 (October 2022 edition) and
considering that the present claim was lodged on 7 June 2022, the March 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
4.
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 TMS.
c. Merits of the dispute
5.
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
6.
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 compliance by the
Respondent of payment of certain financial obligations as per the contract, namely the
failure by the Respondent to pay the Claimant’s salary for at least four months in the total
amount of EUR 140,000 and an alleged bonus payment of EUR 75,000.
7.
In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the latter had a valid justification for not
having complied with its financial obligations.
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8.
The Chamber noted the Respondent were not contesting the fact that the outstanding
monthly salaries were due to the Claimant, it merely denied the content of the WhatsApp
correspondence which refers to an alleged match bonus amount of EUR 75,000 allegedly
due to the Claimant.
9.
The Chamber also recalled the content of 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. With this in mind, the Chamber deemed that it was up to the Claimant to
prove his entitlement to the alleged match bonus in the amount of EUR 75,000.
10. In this respect, the Chamber highlighted that the documentation provided by the Claimant
i.e., WhatsApp correspondence, cannot be considered as sufficient evidence establishing
the Claimant’s entitlement to the alleged match bonus as claimed.
11. In light of the above and taking into consideration the club’s argumentation regarding the
WhatsApp correspondence in that it denied that such a correspondence took place,
moreover that neither names nor a date is visible from the screenshot submitted in the
petition of the Claimant, it is impossible to verify the origin of the conversation as well as
the parties between whom it took place, the Chamber therefore understood that the
Claimant did not meet his burden of proof in order to demonstrate his entitlement to the
bonus as claimed, hence the Chamber decided to reject this part of his claim.
12. In view of the foregoing, the Respondent is only to be held liable to pay the Claimant his
outstanding salaries deriving from the contract concluded between the parties.
ii. Consequences
13. 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.
14. 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 outstanding
amount of EUR 140,000, corresponding to the following:
-
EUR 35,000 as February 2022 salary
EUR 35,000 as March 2022 salary
EUR 35,000 as April 2022 salary
EUR 35,000 as May 2022 salary
11. What is more, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the Chamber decided to award 5% interest p.a. on the above amounts
from the respective due dates until the date of effective payment.
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iii. Art. 12bis of the Regulations
12. In continuation, bearing in mind the foregoing considerations, 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. In this respect, she
confirmed that the Respondent failed to comply with its financial obligations in line with
the contract, without a prima facie justification, and was duly notified of the contractual
breach by the Claimant, who granted the Respondent at least 10 days to cure its default, to
no avail.
13. The DRC established that in virtue of art. 12bis par. 4 of the Regulations she has
competence to impose sanctions on the Respondent.
14. Moreover, the Chamber referred to art. 12bis par. 6 of the Regulations, which establishes
that a repeated offence will be considered as an aggravating circumstance and lead to a
more severe penalty.
15. Bearing in mind the above and taking into account that this is a seventh offense of the
Respondent in the past two years, the deciding body decided to impose a fine in the amount
of USD 40,000 on the Respondent.
iv. Compliance with monetary decisions
15. 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.
16. 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.
17. 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.
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18. 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.
19. 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
20. 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.
21. 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.
22. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
REF FPSD-6286
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Isaac Sackey, is partially accepted.
2.
The Respondent, Hatayspor, has to pay to the Claimant, the amount of EUR 140,000 as
outstanding remuneration plus 5% interest p.a. as from the respective due dates until the
date of effective payment as follows:
-
on the amount of EUR 35,000 as from 1 March 2022
on the amount of EUR 35,000 as from 1 April 2022
on the amount of EUR 35,000 as from 1 May 2022
on the amount of EUR 35,000 as from 1 June 2022
3.
Any further claims of the Claimant are rejected.
4.
A fine in the amount of USD 40,000 is imposed on the Respondent, to be paid to FIFA within
30 days of notification of this decision. (cf. note relating to the payment of the fine below)
5.
Full payment of the amount mentioned in point 2 (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
of the amount mentioned in point 2 (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.
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
REF FPSD-6286
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).
NOTE RELATING TO THE PAYMENT OF THE FINE
If applicable, payments to FIFA should be made by wire transfer in US dollars (USD) to the
following bank account:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230
IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
Please mention the applicable reference number
CONTACT INFORMATION
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