Labour Disputes
Texto da decisão
REF FPSD-6249
Decision of the
Dispute Resolution Chamber
passed on 4 August 2022
regarding an employment-related dispute concerning the player
Yannis Salibur
BY:
Omar ONGARO (Italy), Deputy Chairperson
Laurel VAURASI (Fiji), member
Khadija TIMERA (Senegal), member
CLAIMANT:
Yannis Salibur, France
Represented by Jules Plancque
RESPONDENT:
Fatih Karagumruk AS, Türkiye
Represented by Sami Dinc
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I. Facts of the case
1. On 28 September 2020, the French player Yannis Salibur (hereinafter: the Claimant or the
Player) and the Turkish club Fatih Karagumruk (hereinafter the Respondent or the Club)
concluded an employment contract (hereinafter: the contract), valid as of the date of
signature and to be effective during the 2020/2021 and 2021/2022 seasons until 31 May
2022.
2. In accordance with clause 6.1 of the contract, the Player was entitled, inter alia, to the
following amounts:
-
2020/2021 season: EUR 525,000 net, broken down as follows:
• EUR 150,000 to be paid as an advance payment (EUR 75,000 in the 10
business days following the signing date of the contract and EUR 75,000 on
30 June 2021);
• EUR 375,000 to be paid as monthly salary in 10 equal instalments between
September 2020 and June 2021. The monthly salaries were due on the last
day of the relevant months.
-
2021/2022 season: EUR 525,000 net – in case the Club played in TFF Super League
(i.e., the local first division), broken down as follows:
• EUR 525,000 to be paid as monthly salary in 10 equal instalments between
September 2021 and June 2022. The monthly salaries were due on the last
day of the relevant months.
-
2021/2022 season: EUR 367,500 net – in case the Club played in TFF 1st league (i.e.,
the local second division), broken down as follows:
• EUR 367,500 to be paid as monthly salary in 10 equal instalments between
September 2021 and June 2022. The monthly salaries were due on the last
day of the relevant months.
3. During the season 2020/2021, the Club failed to pay to the Player certain amounts.
4. On 4 June 2021, the parties signed an “Amendment protocol” whereby the Player:
a. accepted to reduce the outstanding amount due by the Club from EUR 235,000 to
EUR 200,000 for the season 2020/2021;
b. agreed to have no further rights and contractual/non contractual receivables other
than the mentioned amount; and
c. accepted to reduce his salary for the season 2021/2022 by EUR 75,000. Contextually,
the total amount to be paid as salary for such season was EUR 450,000 in 10 equal
instalments between September 2021 and June 2022. These monthly salaries were
due on the last day of the relevant months.
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5. On 7 October 2021, the Claimant wrote to the Respondent requesting his unpaid salary of
September 2021 upon receipt of the letter by the Club. The Claimant also requested to be
reintegrated into the collective training of the professional group from the first training
session following receipt of the letter by the Club.
6. On 14 October 2021, the Respondent replied by e-mail to the Claimant, explaining, inter
alia, that the Player “is not training with the professional football A team of our client
temporarily because of his insufficient physical conditions at the moment. We ensure you that
Mr. Salibur is making his training sessions in accordance with the relevant FIFA regulations” and
that the overdue payments would be completed in the forthcoming days.
7. On 22 October 2021, the September 2021 salary was paid by the Respondent to the
Claimant.
8. On 10 November 2021, the Player sent an e-mail to the Respondent indicating that the
October 2021 salary was not paid and requesting to regularize the situation.
9. On 19 November 2021, the Player sent an e-mail to the Respondent claiming the unpaid
salary for October 2021. The salary was eventually paid on 24 November 2021.
10. On 4 January 2022, the Claimant put the Respondent in default for the unpaid salary
regarding December 2021. The Claimant granted a 15-day deadline to the Club to comply
with its contractual obligations. The salary was eventually paid on 28 January 2022.
11. On 31 March 2022, the Claimant sent an e-mail to the Respondent indicating that the latest
two salaries were not paid and requested to regularize the situation.
12. On 27 April 2022, the Claimant sent an e-mail to the Respondent indicating that three
salaries were not paid and requested to regularize the situation.
13. In May 2022, the Respondent provided the Claimant with official reports where it was
alleged that the Claimant did not attend 4 trainings and 2 games.
14. On 19 May 2022, the Claimant indicated that he received a medical treatment and had 45 days to recover. Documentation such as WhatsApp discussions with the Club’s doctor
and the notice of the medication allegedly used by the player was provided.
15. On 1 June 2022, the Board of Directors of the Club decided to impose a fine amounting to
EUR 46,000 to the player for no attendance of 4 trainings and 2 games.
II. Proceedings before FIFA
16. On 3 June 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
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a. Position of the Claimant
17. The Claimant requested EUR 180,000 corresponding to the outstanding salaries from
February to May 2022. The amount would be raised to EUR 225,000, in case the
Respondent did not pay the 2022 June salary on a timely fashion.
18. In addition, the Claimant indicated that he had suffered for two seasons due to the Club’s
failure to fulfil its essential obligations (late payment, non-payment, dismissal, etc.).
Therefore, the Claimant requested the amount of EUR 110,000 net as additional damages.
that amount according to the Claimant, corresponds to the amount waived on the
Amendment protocol signed on 4 June 2021.
19. The requests for relief of the Claimant were the following:
a. Overdue salaries:
• EUR 180,000 net (from February 2022 - May 2022) in case the June 2022
salary is paid. Or;
• EUR 225,000 net (from February 2022 – June 2022) in case the June 2022
salary is not paid.
b. Damage compensation (dommages-intérêts complémentaires) amounting to EUR
110,000 net;
c. Procedure fees amounting to EUR 5,000;
d. Interests:
• 18% interest with respect to the overdue salaries as of 28 February 2022;
• 5% interest with regards to the damage compensation as of 4 June 2021.
e. Sporting sanctions to be applied on the Club.
b. Position of the Respondent
20. The Club replied to the Player’s claim contesting the amount due, the damage
compensation, the procedural fees and the interests.
21. With regards to the overdue payables, the Respondent indicated that the total amount to
be paid for the 2020/2021 and 2021/2022 seasons was EUR 930,000. The amount already
paid according to the Respondent amounted to EUR 747,371.55 and TL 87,290.00 or EUR
9,396.55. In support of this position, the Club provided as evidence various bank
statements with different amounts.
22. Moreover, the Club argued that the Claimant breached his obligations several times by:
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Not attending to the training on 19.05.2022;
Not attending to the training on 20.05.2022;
Not attending to the training on 20.05.2022;
Not attending to the training on 21.05.2022;
Not attending to the match camp of the Respondent on 21.05.2022;
Not attending to the match of the Respondent on 22.05.2022.
23. The club indicated that based on the above-mentioned facts, and in accordance with the
Contractual Obligations of the Player and Internal Disciplinary Regulation for the football
season, the Player received a fine for EUR 46,000. Such amount was accordingly deducted
from the Claimant’s receivables for the 2021/2022 season. The Club concluded that “by
considering the several payments made to the Claimant and the imposed fine, the Claimant's
only total overdue receivable amount is 127.221.90-Euro”.
24. With regards to the compensation, the Club argued that “the Claimant has no legal ground
under any circumstances” and that shall not be considered. Also, in respect of the 18%
interest, the Club indicated that “the annual interest rate is determined %5 for the receivables
of a party”.
25. The Respondent requested the following relief:
-
“To dismiss the claim of the Claimant.
To make a decision that the judicial costs and the attorneyship fees that the Claimant
is faced with shall paid by the Claimant.”
c. Rejoinder of the Claimant
26. The Claimant argued that the amount of EUR 9,396.55 is related to a performance bonus,
i.e. “primes de résultats sportifs” .
27. With regards to the fine imposed on the Player for breach of contract, the Claimant
indicated that he was never absent with an unjustified reason. The Claimant explained that
for medical reasons he was unable to participate in those trainings. The Player provided
evidence in this respect e.g. WhatsApp conversations and a letter of the Club’s doctor.
Furthermore, the Player indicated that he was not called to participate on the game of 22
May 2022. In addition, the Claimant argued that the fine, in the event that this would be
justified, is not proportional with respect to FIFA and CAS jurisprudence.
d. Final comments of the Respondent
28. The Respondent contested the arguments presented by the Claimant and requested to
“dismiss the false claims of the Claimant and decide in accordance with the request for relief
which was already presented within the Reply Brief of ours.”
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
29. First of all, the Dispute Resolution Chamber (hereinafter also referred as the Chamber)
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 3 June 2022 and submitted for
decision on 4 August 2022. Taking into account the wording of art. 34 of the June 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.
30. 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 (July 2022 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 French player and
a Turkish club.
31. 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 Player (July 2022 edition), and
considering that the present claim was lodged on 3 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
32. 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
33. 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
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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
34. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note that the Player lodged the claim at hand against the Club seeking
payment of the outstanding remuneration from February 2022 to June 2022 (i.e. EUR
225,000), plus 18% interest p.a. as of 28 February 2022 and a damage compensation (i.e.
EUR 110,000) plus 5% interest p.a. as of 4 June 2021.
35. With regards to the outstanding remuneration, 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.
36. The Chamber was mindful that the Club argued that it paid to the Player for the 2020/2021
and 2021/2022 seasons the total amount of EUR 747,371.55 and TL 87,290.00 or EUR
9,396.55 and provided as evidence various bank statements with different amounts,
some translated to English and some in Turkish only.
37. Based on the above, the members of the Chamber recalled the content of article 13, par.
5 of the Procedural Rules and turned their attention to the documentation on file.
38. The Chamber identified that 5 salary payments of EUR 46,000 each (in total EUR 230,000)
for the 2021/2022 season were made. The amounts were respectively paid on 25 October
2021, 25 November 2021, 28 December 2021, 28 January 2022, and 25 February 2022.
These amounts represented EUR 5,000 (i.e. EUR 1,000, each) more than the contractual
amount to which the Player was entitled to in that season. Consequently, in accordance
to the evidence at hand, the Chamber also concluded that the amount of EUR 5,000 was
overpaid by the Respondent for the 2021/2022 season.
39. As for the remaining 5 instalments from February 2022 to June 2022 salaries, the
Chamber acknowledged that the Club did not advance any convincing evidence capable
of rebutting the Player’s allegations as to the outstanding remuneration.
40. In this regard, the Chamber referred to art. 13, par. 1 of the Procedural Rules and
observed that the Club did only provide unspecified evidence of payment, which could
not be deemed as a valid proof of compliance in respect of the cited period – February to
July 2022.
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41. Based on the foregoing, the Chamber considered that the documents provided are not
able to demonstrate the payment of the amounts claimed as outstanding by the Claimant,
or at least not in their entirety.
42. Subsequently, the Chamber noted that according to the Respondent an amount of EUR
46,000 shall be deducted from the outstanding salaries, considering that a fine was
imposed on the Claimant according to the Decision of the Board of Directors of the Club
on 1 June 2022. The Respondent alleged that the player did not attend 4 trainings and 2
games in May 2022, and argued that no justification was given by the Player.
43. The Chamber analysed the evidence provided on this matter and was unable to determine
whether the disciplinary process followed the Player’s right to be heard and due process,
considering that: (a) the Chamber was not presented with any evidence of the entire
proceedings, comprising of inter alia a substantiated decision; and (b) the fine did not fulfil
the criteria of proportionality, as it represented more than one month salary. Additionally,
the Chamber highlighted that part of the documentation was not provided in an official
FIFA language, and thus could only be disregarded.
44. Based on the foregoing, the Chamber concluded to not include the fine as a deduction of
the amounts due to the Claimant.
45. Based on the above, 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, i.e. EUR 220,000 (EUR 45,000 times
5 less EUR 5,000). On this note, the Chamber clarified that the overpaid EUR 5,000 were to
be deducted from the oldest unpaid portion of the Player’s salary, i.e. his February 2022
salary.
46. In continuation, the Chamber acknowledged that the Claimant requested on the due
salaries a 18% p.a. interest as from 28 February 2022. The Chamber did not identify any
contractual basis on this regard. In view of the foregoing and as well as the constant
practice of the Chamber in this regard, the Chamber decided to award the Claimant
interest at the rate of 5% p.a. on the outstanding amounts from the next day as of the due
dates (and not from 28 February 2022), until the date of effective payment.
47. Subsequently, the Chamber analysed the request of the Claimant related to the damage
compensation of EUR 110,000, that the Claimant accepted to waive on the Amendment
Protocol signed on 4 June 2021.
48. In this regard, the Chamber took note of the wording of clause 3 and 5 of the Amendment
Protocol, which established that:
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“3-The Parties agree that the Player's unpaid receivables, which were born and / or to be borne
under any name whatsoever for the 2020/2021 football season pursuant to the Contract is
235.000,00-Euro (Two Hundred Thirty Five Thousand Euro) (This total amount includes the
monthly salary of June 2021) in total. The Parties irrevocably agree that, as a result of the
reduction in the amount of 35.000,00-Euro made by the Player with his freewill, the total abovementioned receivable of the Player regarding the football season of 2020/2021 is amended as
200.000,00-Euro only and this total amount shall be paid by the Club to the Player until
07.06.2021 (…)
4-The Parties have agreed to amend the financial obligations for the 2021/2022 football season
specified in Article 6 of the aforementioned Contract within the framework of this Protocol and
the following absolute agreement of the Parties. The parties have irrevocably agreed that, as a
result of the discount amounting 75.000,00-Euro made by the Player with his freewill within the
scope of Article 6.1 of the aforementioned Agreement, the total amount of 525.000,00-Euro of
2021/2022 football season remuneration has been reduced to 450,000.00-Euro (…)”
49. At this point, the Chamber wished to recall the decisions and jurisprudence of the Court
of Arbitration for Sport (CAS) with regards to waivers. In this respect, the DRC outlined
more in particular the contents of the awards in cases CAS 2020/A/6727 as well as CAS
2016/A/4582, to which it adheres. The conclusion that follows from the CAS jurisprudence
is that players in principle cannot waive their right to outstanding remuneration for work
already performed.
50. The Chamber took note that the Claimant requested a total amount of EUR 110,000, from
which EUR 35,000 corresponded to the work already performed by the Claimant.
51. The foregoing considerations coupled with the teachings of CAS jurisprudence, which are
detailed below, led the Chamber to conclude that the waiving of salary for work already
performed, in the case at hand, cannot be considered as validly made. The jurisprudence
of CAS expresses the following reasoning:
a) Firstly, art. 341 of the Swiss Code of Obligations (SCO) prevents the employee to
waive, during the duration of the contract and within a month following the
(effective) end of the contractual relationship, claims arising from mandatory
provisions of the law or of a collective agreement.
b) Secondly, art. 361 SCO lists the absolutely mandatory provisions (i.e. those that
cannot be derogated from neither to the detriment of the employer or employee).
c) Thirdly, art. 362 SCO lists the relative mandatory provisions (i.e. those that protect
the employee only as the provisions listed therein cannot be derogated from to the
detriment of the latter).
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d) Fourthly, art. 20 par. 1 SCO rules that a contract (or clause) is null and void if its
terms are unlawful (i.e. such in a case where a contract that contravenes art.
361/362).
e) Fifthly, the salary, established under art. 322 SCO is not listed under art. 361/362,
entailing that parties may agree on the reduction in pay for the future; but not for
work already done for the period established under art. 341.
f) At the same time, for receipts in full settlement, these are to be considered in
contravention of art. 341 SCO if they contain a unilateral waiver by the employee of
a claim laid down in a mandatory provision (art. 361/362), and that this claim has
not been compensated through a transaction. In other words: if the player
indirectly waives payment of wages for work already done / outstanding salaries by
way of a remission of debt (“I acknowledge having received everything”, whereas
this is not true), this waiver is null and void unless it is part of a genuine transaction
involving concessions of comparable importance on the part of each party.
g) In concrete terms, CAS jurisprudence reveals that to assess whether such a
transaction is permissible under art. 341 of the SCO, the court/deciding body is
required to conduct a balancing of interests, checking whether the mutual claims
waived by each party are of comparable value. Put in another way, whether there
is an appropriate equivalence between the parties’ reciprocal concessions.
52. As outlined before, the Chamber adhered to this understanding enshrined in CAS
jurisprudence. Accordingly, the Chamber decided that the Amendment Protocol is partially
rendered null and void to establish that the reduction of EUR 35,000 cannot be waived and
thus shall be awarded.
53. As to the remaining EUR 75,000, the Chamber assessed that the amount corresponded to
future salaries, and as per the above reasoning these could be validly waived.
Consequently, the Chamber concluded that the Player shall be entitled to the amount of
EUR 35,000 only in connection with the Amendment Protocol.
54. 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 4 June 2021 until the date of
effective payment.
ii. Compliance with monetary decisions
55. 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
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concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
56. In this regard, the Chamber 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.
57. Therefore, bearing in mind the above, the Chamber 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.
58. 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.
59. The chamber 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
60. 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.
61. 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.
62. Lastly, the Chamber 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, Yannis Salibur, is partially accepted.
2.
The Respondent, Fatih Karagumruk AS, has to pay to the Claimant, the following amounts:
- EUR 40,000 net as outstanding remuneration plus 5 % interest p.a. as from 1 March 2022
until the day of the effective payment;
- EUR 45,000 net as outstanding remuneration plus 5 % interest p.a. as from 1 April 2022
until the day of the effective payment;
- EUR 45,000 net as outstanding remuneration plus 5 % interest p.a. as from 1 May 2022
until the day of the effective payment;
- EUR 45,000 net as outstanding remuneration plus 5 % interest p.a. as from 1 June 2022
until the day of the effective payment;
- EUR 45,000 net as outstanding remuneration plus 5 % interest p.a. as from 1 July 2022
until the day of the effective payment;
- EUR 35,000 net as outstanding remuneration plus 5 % interest p.a. as from 4 June 2021
until the day of the 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.
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).
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