Labour Disputes
Texto da decisão
REF. FPSD-7831
Decision of the
Dispute Resolution Chamber
passed on 23 March 2023
regarding an employment-related dispute concerning
the player Hadi SACKO
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairperson
Michele Colucci (Italy), member
Mario Flores Chemor (Mexico), member
CLAIMANT:
Hadi SACKO, France
Represented by Rhadames Killy
RESPONDENT:
Denizlispor Kulubu, Türkiye
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REF. FPSD-7831
I. Facts of the case
1.
On 17 July 2019, the French player Hadi SACKO (hereinafter: the player or the Claimant)
and the Turkish club, Denizlispor Kulubu (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.
According to clause 3 of the contract, the club undertook to pay to the player, inter alia, the
following fixed remuneration:
-
For the season 2019/2020 (i.e. from September 2019 to June 2020): EUR 45,000 as
monthly salary;
For the season 2020/2021 (i.e. from August 2020 to May 2021): EUR 50,000 as
monthly salary.
3.
In addition, clause 3 provides for the player’s entitlement to a fixed bonus of EUR 100,000,
which would be paid on 31 July 2020.
4.
By means of his letters dated 26 February, 16 June and 28 December 2020, the player put
the club in default of payment of salaries and bonuses up to the amount of EUR 152,500,
thereby urging the club to comply with its financial obligations.
5.
On 19 April 2021, the player put the club -again- in default of payment in the amount of
EUR 250,000, corresponding to outstanding salaries, thereby grating the club a 15 days’
deadline to remedy the default; however, to no avail.
6.
Subsequently, by means of his letter dated 12 May 2021, the player unilaterally terminated
the contract. The player remained unemployed until the date on which the contract would
have expired.
II. Proceedings before FIFA
a. Position of the Claimant
7.
On 12 October 2022, the player lodged a claim against the club before FIFA, requesting to
be awarded outstanding remuneration and compensation for breach of contract in the
total amount of EUR 418,000, broken down by the player as follows:
Outstanding remuneration:
-
EUR 25,000 corresponding to the unpaid part of the fixed bonus due on 31 July
2020;
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REF. FPSD-7831
-
EUR 25,000 corresponding to the unpaid part of the salary of September 2020;
-
EUR 110,000 corresponding to the unpaid part of the salaries of October,
November and December 2020 in the amount of EUR 36,667 each;
-
EUR 200,000 corresponding to the salaries of January, February, March and April
2021 in the amount of EUR 50,000 each.
Compensation for breach of contract:
-
EUR 50,000 corresponding to the salary of May 2021;
-
EUR 8,000 as “late payment penalty and legal fees”.
8.
In his claim, the player explained that the club constantly delayed the payment of his
remuneration and that, despite him putting the club in default of payment on several
occasions, the latter did not comply with its financial obligations towards him, which led
him to terminate the contract on 12 May 2021
9.
In this respect, the player argues that he terminated the contract with just cause.
b. Position of the Respondent
10. On its part, the club failed to reply to the claim within the deadline granted by the FIFA
general secretariat for the Respondent to do so.
11. However, once the deadline had expired, the Respondent replied, stating that it had made
the following payments, in the total amount of EUR 290,000, in favour of the Claimant, as
follows:
-
EUR 75,000 on 2 October 2020;
EUR 75,000 on 1 December 2020;
EUR 100,000 on 14 January 2021;
EUR 20,000 on 19 February 2021;
EUR 20,000 on 25 February 2021.
12. In addition, the Respondent held that, due to the Covid-19 pandemic, the club found an
agreement with all the players of the club, whereby the player, in casu, agreed on a
reduction of EUR 55,000 on his remuneration.
13. The above being said, the Respondent requested the claim of the Claimant be rejected.
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REF. FPSD-7831
c. Rejoinder of the Claimant
14. In addition, the Respondent held that, due to the Covid-19 pandemic, the club found an
agreement with all the players of the club, whereby the player, in casu, agreed on a
reduction of EUR 55,000 on his remuneration.
15. In his replica, the player argued that the full remuneration under the contract was EUR
950,000 and that the club has only provided evidence of having paid EUR 290,000.
16. As for the alleged agreement in connection with the salary reduction, the player held that,
although it is true that the club approached the players in the sense brought forward by
the Respondent, the Claimant never agreed to any such reduction, evidence of which is the
absence of any document whereunder the parties so agreed.
17. In this context, the Claimant amended his request for relief, requesting to be awarded
outstanding remuneration and compensation for breach of contract in the total amount of
EUR 560,000, plus default interest at the applicable Swiss rate, broken down by the player
as follows:
Outstanding remuneration:
-
EUR 25,000 corresponding to the unpaid part of the fixed bonus due on 31 July
2020;
EUR 25,000 corresponding to the unpaid part of the salary of September 2020;
EUR 110,000 corresponding to the unpaid part of the salaries of October,
November and December 2020 in the amount of EUR 36,667 each;
EUR 200,000 corresponding to the salaries of January, February, March and April
2021 in the amount of EUR 50,000 each.
Compensation for breach of contract:
-
EUR 50,000 corresponding to the salary of May 2021;
EUR 8,000 as “late payment penalty and legal fees” (note: no further explanation
provided).
Additional compensation:
-
EUR 150,000 corresponding to 3 salaries of EUR 50,000 each.
18. The above being said, the Claimant reiterated what had been claimed in his statement of
claim.
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REF. FPSD-7831
d. Final comments of the Respondent
19. Despite having been invited to provide its final comments, the Respondent failed to do so.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
20. 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 12 October 2022 and submitted
for decision on 23 March 2023. 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.
21. 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
Resolution Chamber is, in principle, competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
player from France and a club from Türkiye.
22. Notwithstanding the above, the Chamber underscored that, considering that the present
claim was lodged on 12 October 2022 and that the Claimant is requesting -inter alia- to be
awarded moneys payable by July 2020 (fixed bonus due by July 2020) and September 2020
(salary of September), said petita is inadmissible cf. art. 23 para. 3 of the Regulations on
the Status and Transfer of Players, insofar as more than 2 years have elapsed since the
event giving rise to the dispute. Hence, continued the DRC, the claim of the Claimant is
partially time-barred and -therefore-, partially inadmissible.
23. 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 12 October 2022, the July 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
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REF. FPSD-7831
b. Burden of proof
24. 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
25. 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
26. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the Claimant requests to be awarded outstanding
remuneration and compensation for breach of contract in the total amount of EUR 560,000
and that, on its part, the club failed to reply to the claim within the deadline granted by the
FIFA general secretariat for the Respondent to do so.
27. Therefore, continued the Chamber, considering that the petita of the player that is
admissible finds a contractual basis in the contract and its payment is fixed (not subject to
the consecution of any objective) and that the player is only requesting to be awarded
outstanding monthly salaries, whose absence of payment has remained undisputed as a
consequence of the Respondent’s lack of reply to the Claimant’s amended claim within the
deadline granted, the DRC decided that the Claimant is entitled to the requested
outstanding salaries in accordance with the legal principle: pacta sunt servanda.
28. As to the unilateral termination of the contract, the Chamber further observed that it also
remained undisputed that more than 2 monthly salaries (actually 8 salaries) were
outstanding and that the player put the club in default of payment granting the latter a
deadline of 15 days without the club remedying its default. Thus, the Chamber determined
that the player terminated the contract with just cause on 12 May 2021 cf. art. 14bis of the
Regulations and, thus, the player is also entitled to a compensation for breach of contract.
29. As for the request of the Claimant to be awarded legal fees, the Chamber wished to recall
that according to art. 25 para. 8 of the Procedural Rules, no legal costs shall be awarded.
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REF. FPSD-7831
Thus, the amount of EUR 8,000 requested by the player for the aforementioned
considerations needs to be rejected.
ii. Consequences
30. 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.
31. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player amounts to EUR 310,000
corresponding to the unpaid part of the salaries of October, November and December
2020 in the amount of EUR 36,667 each and to the salaries of January, February, March and
April 2021 in the amount of EUR 50,000 each. 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 amounts which were outstanding under the
contract at the moment of the termination, i.e. EUR 310,000.
32. 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 date on which the contract was
terminated, in view of the fact that the player is requesting to be awarded a default interest,
but did neither specify the dies a quo nor the interest rate of the relevant interest
requested.
33. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the
amount of compensation shall be calculated, in particular and unless otherwise provided
for in the contract at the basis of the dispute, with due consideration for the law of the
country concerned, the specificity of sport and further objective criteria, including in
particular, the remuneration and other benefits due to the player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
34. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
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REF. FPSD-7831
35. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
36. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that, in the case at hand, considering that the residual value of the contract only
corresponds to the month of May 2021, the said salary is the only financial credit to which
the player would be entitled as compensation for breach of contract.
37. In addition, the Chamber noted that the player remained unemployed following the
termination of the contract until the date on which the contract would have expired and,
therefore, any mitigation eventually applicable as per art. 17 para. 1 of the Regulation is
excluded, together with the Claimant’s right to receive an additional compensation.
38. 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 50,000 to the player (i.e. the residual value of the contract, corresponding to the
salary of May 2021), which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
39. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 12 May 2021, i.e. the date on which the contract
was terminated, until the date of effective payment.
iii. Compliance with monetary decisions
40. 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.
41. 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.
42. Notwithstanding the above, the DRC wished to remark that in accordance with art. 24 par.
3 of the Regulations, the aforementioned consequences may be excluded where the
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REF. FPSD-7831
pertinent FIFA deciding body has already imposed on the same party a sporting sanction
on the basis of article 12bis, 17 or 18quater of the Regulations.
43. In this respect, the Chamber recalled that by means of a decision passed on 10 November
2022 and notified on 15 November 2022, a transfer ban has been imposed on the
Respondent pursuant to art. 17 par. 4 of the Regulations (i.e., namely in the case FPSD6950).
44. Accordingly, the Chamber established that in casu art. 24 par. 2 of the Regulations shall not
apply, insofar as in case the Respondent fails to comply with the decision at hand, the
application of a further ban from registering any new players on top of the one already
being served by the Respondent would be moot and against the spirit of the Regulations,
in particularly the enforcement mechanism established under art. 24 of the Regulations.
45. In view of the above, the DRC decided that if the aforementioned sum plus interest is not
paid within 30 days of notification of this decision, the present matter shall be submitted,
upon request of the Claimant, to the FIFA Disciplinary Committee for its consideration and
formal decision.
d. Costs
46. 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.
47. 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.
48. 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-7831
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Hadi SACKO, is partially accepted insofar as it is admissible.
2.
The Respondent, Denizlispor Kulubu, has to pay to the Claimant the following amount(s):
- EUR 310,000 as outstanding remuneration plus 5% interest p.a. as from 12 May 2021
until the date of effective payment;
- EUR 50,000 as compensation for breach of contract plus 5% interest p.a. as from 12
May 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 within 30 days of the notification of this
decision.
5.
If the aforementioned sum plus interest is not paid within 30 days of notification of this
decision, the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for its consideration and formal decision.
6.
This decision is rendered without costs.
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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REF. FPSD-7831
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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