DRC Overdue Payables
Texto da decisão
REF FPSD-4652
Decision of the
Dispute Resolution Chamber
passed on 10 March 2022
regarding an employment-related dispute concerning the player Henri
Gregoire Saivet
COMPOSITION:
DE WEGER, Frans (The Netherlands), Chairperson
ANDRADE, José Luis (Portugal), member
VERMEER, Roy (The Netherlands), member
CLAIMANT:
Henri Gregoire Saivet, France
Represented by Aydin Doganay
RESPONDENT:
Club Bursaspor, Turkey
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REF FPSD-4652
I.
Facts of the case
1.
On 16 August 2918, the French player Henri Gregoire Saivet (hereinafter: the player or the
Claimant) and the Turkish club Bursaspor (hereinafter: the club or the Respondent) signed an
employment agreement (hereinafter: the contract), valid for the season 2018/2019, i.e. until
31 May 2019.
2.
Following the expiry of the contract, the player filed two separate claims against the club
before FIFA, which were respectively filed under ref. nr. 19-01387 & 20-00084. Accordingly,
the FIFA Dispute Resolution Chamber ruled in favour of the player and awarded a total of
EUR 318,000 plus interest, detailed below:
Case 19-01387:
EUR 277,200, plus 5% interest p.a. until the date of effective payment as follows:
a. 5% p.a. on the amount of EUR 800 as from 1 September 2018;
b. 5% p.a. on the amount of EUR 800 as from 1 October 2018;
c. 5% p.a. on the amount of EUR 800 as from 1 November 2018;
d. 5% p.a. on the amount of EUR 800 as from 1 December 2018;
e. 5% p.a. on the amount of EUR 800 as from 1 January 2019;
f. 5% p.a. on the amount of EUR 800 as from 1 February 2019;
g. 5% p.a. on the amount of EUR 90,800 as from 1 March 2019;
h. 5% p.a. on the amount of EUR 90,800 as from 1 April 2019;
i. 5% p.a. on the amount of EUR 90,800 as from 1 May 2019.
Case 20-00084:
EUR 90,800, plus interest of 5% p.a. until the date of effective payment as follows:
a. on EUR 90,000 as from 1 June 2019;
b. on EUR 800 as from 2 May 2019.
3.
Both decisions were confirmed on appeal by the Court of Arbitration for Sport (CAS).
4.
On 16 July 2021, the parties executed a settlement agreement (hereinafter: the settlement
agreement), whereby the club undertook to pay EUR 373,000 net to the player as follows:
a.
b.
c.
d.
e.
5.
EUR 83,000 on 16 July 2021;
EUR 30,000 on 1 October 2021;
EUR 30,000 on 1 November 2021;
EUR 30,000 on 1 December 2021;
EUR 200,000 on 1 May 2022.
Clause 11 of the settlement agreement reads as follows:
“The Parties agree that in case the Club fails to pay any or all of the Settlement Payment
within 3 (three) days of their respective above-mentioned due dates for some reason
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that it is and without prior formal notice from the Player, the Club is indebted without
delay of the total sum remaining due as principal increased:
(i) by an interest of 10% (ten percent) per annum shall be applied for the due and
unpaid amount from the original due date of the relevant amount stipulated in the
Employment Contract; and
(ii) with a supplementary fix penalty amounting to 30.000,00-Euro (thirty thousand
euros); and
(iii) the Club shall indemnify and hold the Player harmless from any legal costs incurred
by the Player in the recovery of any or all of the Settlement Payment and/or any tax that
the Player may be assessed as being required to pay in relation to the Settlement
Payment.”
6.
On 12 November 2021, the player put the club in default of payment of EUR 60,000
corresponding to instalments 2 & 3 of the settlement agreement, granting the club with 10
days to cure its breach.
II. Proceedings before FIFA
7.
On 26 December 2021, 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
8.
The player argued that the first payment under the settlement agreement was made, but the
club failed to honor its obligations ever since. As such, the player deems that the amount of
EUR 290,000 is “due and collectible” considering the non-payment of the 2nd instalment.
9.
The player furthermore argued that interest of 10% p.a. shall apply “from the initial date of
payment provided for in the employment contract and until full payment”, which were
calculated as follows (original in French as per the Claimant’s claim):
“17,600 euros (90,800 + 800 +800 +800 + 800 + 800 +800 – 78,000 (83,000-5,000)
majoré d’un intérêt de 10% par année à compter du 1 mars 2019;
90,800 euros majoré d’un intérêt de 10% par année à compter du 1 avril 2019;
90,800 euros majoré d’un intérêt de 10% par année à compter du 1 mai 2019 (…);
90,800 euros majoré d’un intérêt de 10% par année à compter du 1 juin 2019 (…)”.
10. The player also seeks payment of EUR 30,000 as penalty under clause 11 of the settlement
agreement, as well as EUR 15,000 as legal expenses.
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11. The player’s request for relief were as follows:
“RECEIVE the request filed by Mr Henri, Grégoire SAIVET;
DISMISS all of the opposing party's claims;
To note the absence of payment of the amounts due by BURSASPOR to Mr. Henri,
Gregoire SAIVET, for a total amount of euros 90,000;
ORDER BURSASPOR to pay the totality of the sums due to Mr. Henri, Grégoire SAIVET, that
is to say the sum of 290,000 euros increased by an interest of 10% per year until perfect
payment;
TO CONDEMN BURSASPOR to the payment of penalty to Mr. Henri, Gregoire SAIVET of
an amount of euros 30,000;
To charge to BURSASPOR the entirety of the expenses of procedure and fees of the lawyer
which Mr. Henri, Gregoire SAIVET, is confronted within the framework of the present
procedure, that is to say the total sum of euros 15,000”.
b. Position of the Respondent
12. The club filed a short answer in reply to the player’s claim, as follows:
“Dear Sir/Madam.
We acknowledge your letter dated 18th January 2022. We would like to present our letter of
defense.
We hereby reject the request for legal expenses and cost of the proceedings as there is no cost
in this FIFA DRC procedure.
We would like to underline that the subject of the case is a settlement agreement not an
employment contract. Therefore, Article 17 of RSTP can not be applied.
Request for relief:
We kindly request the DRC to reject all the claims of the player.”
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 26 December 2021 and submitted for
decision on 10 March 2022. Taking into account the wording of art. 34 of the October 2021
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.
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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 (March 2022), 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 club from
Turkey.
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 (March 2022), and considering
that the present claim was lodged on 26 December 2021, the August 2021 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.
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 Claimant filed is a claim for (a) outstanding remuneration,
(b) interest on late payment, (c) contractual penalty and (d) legal expenses, and that the
Respondent only challenged item (d) i.e. the legal expenses.
19. 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
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complied with its financial obligations. At the same time, it decided that part of the claim of
the player stood undisputed and therefore should be accepted.
20. With regards to the legal expenses, the sole concept that is in fact disputed, the Chamber
noted that its reimbursement (or “indemnity” as put forward in the relevant settlement
agreement) has a contractual basis, and the player filed evidence of having incurred such
costs as an invoice form the corresponding attorney was presented – and such invoice indeed
is of the exact amount sought in this concept, i.e. EUR 15,000.
21. Considering the above and the fact that by failing to comply with the settlement agreement
the club caused to player to file, for the third time, a claim to collect his dues, the Chamber
found therefore that the player had met his burden of proof and that these amounts should
be awarded.
22. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda,
which in essence means that agreements must be respected by the parties in good faith, the
Respondent is held liable to pay the Claimant the outstanding amounts deriving from the
contract concluded between the parties, namely:
a. EUR 17,600 net corresponding to the outstanding remuneration due by 1 March 2019;
b. EUR 90,800 net corresponding to the outstanding remuneration due by 1 April 2019;
c. EUR 90,800 net corresponding to the outstanding remuneration due by 1 May 2019;
d. EUR 90,800 net corresponding to the outstanding remuneration due by 1 June 2019;
e. EUR 30,000 as contractual penalty under clause 11 (iii) of the settlement agreement;
f. EUR 15,000 as reimbursement of expenses under clause 11 (iv) of the settlement
agreement.
23. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Football Tribunal in this regard, the DRC decided to award the Claimant interest (as
contractually agreed) at the rate of 10% p.a. on the outstanding amounts as from their
respective due dates until the date of effective payment. However, the Chamber pointed out
that in line with the principle ne ultra petita, interest should not apply on the reimbursement
of legal costs since not requested by the Claimant. Equally, the Chamber clarified that even
if not requested, no interest can accrue in the contractual penalty due to the principle ne bis
in idem.
ii. Art. 12bis of the Regulations
24. In continuation, 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.
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25.
To this end, the Chamber confirmed that the player put the club in default of payment of
the amount of EUR 60,000 on 12 November 2021, which had fallen due more than 30
days before, and granted the club a 10-day deadline to cure such breach of contract.
26.
Accordingly, the Chamber confirmed that the club had delayed a due payment without a
prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
27.
The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations has
competence to impose sanctions on the club. On account of the above and bearing in
mind that this is the 5th offense by the club within the last two years, the Chamber decided
to impose a fine of USD 18,750 on the club in accordance with art. 12bis par. 4 lit. c) of
the Regulations.
28.
In this connection, the Chamber highlighted that a repeated offence will be considered as
an aggravating circumstance and lead to a more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
29. 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.
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.
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. 24 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.
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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. 24 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.
36. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Henri Gregoire Saivet, is partially accepted.
2.
The Respondent, Club Bursaspor, has to pay to the Claimant the following amount(s):
a. EUR 17,600 net as outstanding remuneration plus 10% interest p.a. as from 1 March
2019 until the date of effective payment;
b. EUR 90,800 net as outstanding remuneration plus 10% interest p.a. as from 1 April 2019
until the date of effective payment;
c. EUR 90,800 net as outstanding remuneration plus 10% interest p.a. as from 1 May 2019
until the date of effective payment;
d. EUR 90,800 net as outstanding remuneration plus 10% interest p.a. as from 1 June 2019
until the date of effective payment;
e. EUR 15,000 as outstanding remuneration;
f. EUR 30,000 as contractual penalty.
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 (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1.
2.
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.
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.
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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.
A fine of USD 18,750 is imposed on the Respondent. Such fine is to be paid by the Respondent
to FIFA within 30 days as from the notification of this decision 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
8.
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).
CONTACT INFORMATION
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