DRC Overdue Payables
Texto da decisão
REF FPSD-5635
Decision of the
Dispute Resolution Chamber
passed on 9 June 2022
regarding a contractual dispute concerning the player Vieux Yakhya Sané
BY:
Frans de Weger (the Netherlands), Chairperson
Michele Colucci (Italy), member
Iñigo Riestra (Mexico), member
CLAIMANT:
Vieux Yakhya Sané, Senegal
Represented by Alexis Rutman
RESPONDENT:
Bursaspor Kulübü, Turkey
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I.
Facts of the case
1.
On 1 July 2016, the Senegalese player, Vieux Yakhya Sané (hereinafter: the Claimant), and the
Turkish club, Bursaspor Kulübü (hereinafter: the Respondent) signed an employment contract
(hereinafter: the Contract) valid as from the date of signature until 31 May 2019.
2.
The Respondent failed to pay to the Claimant (hereinafter jointly: the Parties) several salaries
under the Contract, causing the latter to lodge a claim before FIFA on 27 September 2018.
3.
On 30 March 2020, FIFA communicated the findings of the Decision passed on 26 March 2020
(hereinafter: the Decision) in respect of the claim lodged on 27 September 2018.
4.
On 6 November 2020, due to a failure on behalf of the Respondent to comply with the decision
with Ref. Nr. 18-01996/osv-drl rendered by FIFA on 26 March 2020 in line with art. 24 of the
Regulations on the Status and Transfer of Players, a disciplinary sanction in the shape of a
registration ban of three consecutive periods was imposed on the Respondent.
5.
On 27 July 2021, the Parties concluded a settlement agreement (hereinafter: the Settlement
Agreement), by way of which the aforementioned sanction was lifted.
6.
In accordance with Clause 10 of the Settlement Agreement, the Respondent agreed to pay the
Claimant EUR 400,000, “interest inclusive”, as outlined in more detail in Clause 11.
7.
In accordance with Clause 11 of the Settlement Agreement, said payment shall be made in
16 instalments of EUR 25,000, falling due on the 15th day of each month, as from October 2021
until January 2023.
8.
Furthermore, in accordance with Clause 16 of the Settlement Agreement, it was agreed that,
should the Respondent fail to make any of the payments stipulated within said Agreement, the
Claimant shall have the right to request:
a. “the reimposition of the sanction with reference number 18-01996/osv-drl and claim
additional sanctions at the discretion of the FIFA Administration;
b. a contractual penalty in the amount of EUR 200,000;
c. immediate payment of the full outstanding amount under the Settlement Agreement.”
9.
By correspondence dated 9 November 2021, the Claimant put the Respondent in default for the
first instalment under the Settlement Agreement, in the amount of EUR 25,000, setting a time
limit expiring on 11 November 2021 for the Respondent to remedy the default, to no avail.
10. On 17 November 2021, the Claimant put the Respondent in default for the outstanding
instalments of October 2021, November 2021 and December 2021 under the Settlement
Agreement, in the amount of EUR 75,000, granting a time limit expiring on 27 November 2021 for
the Respondent to remedy the default, to no avail.
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II. Proceedings before FIFA
11. On 31 March 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
12. According to the Claimant, in line with the principle of pacta sunt servanda, the Respondent failed
to comply with the Settlement Agreement signed between the Parties on 27 July 2021 and should,
therefore, be held liable to pay the amounts agreed upon as outlined under said Agreement.
13. The Claimant submitted that he complied with the procedural requirements of art. 12bis of the
Regulations, by putting the Respondent in default for amounts which were outstanding for more
than 30 days and granting a 10-day deadline for the Respondent to remedy such default.
14. The Claimant firstly requested the reimposition of the sanction imposed on 6 November 2020 on
the Respondent, in accordance with the Settlement Agreement.
15. Furthermore, the Claimant requested EUR 400,000 as overdue payable, due immediately in full,
in accordance with the acceleration clause under Clause 16 of the Settlement Agreement.
16. Moreover, the Claimant requested EUR 200,000 as contractual penalty in accordance with the
Settlement Agreement.
17. The Claimant also requested interest on the outstanding amount of EUR 400,000 at the standard
rate of 5% p.a. either as from the due dates of the respective instalments, or from the date of the
decision, “whichever comes first”, until the date of effective payment.
18. Lastly, the Claimant requested sporting sanctions as deemed appropriate by FIFA to be imposed
on the Respondent, in line with art. 12bis.
b. Position of the Respondent
19. The Respondent submits that it rejects the claim “in its entirety”.
20. According to the Respondent, the penalty clause in the amount of EUR 200,000 is
disproportionate and unreasonable in relation to the Settlement Agreement, and should either
be rejected entirely or, failing this, be reduced to EUR 100,000, or 25% of the total unpaid
receivables.
21. Furthermore, the Respondent outlined that it never received the second default notice in which
the Claimant granted a 10-day deadline, therefore arguing that the procedural requirements of
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art. 12bis of the Regulations on the Status and Transfer of Players were not met and that, as a
result, no sporting sanctions shall be imposed.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. 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 31 March 2022 and submitted for decision on
9 June 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.
23. 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. a) of the Regulations
on the Status and Transfer of Players (March 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 Senegalese player and a Turkish club.
24. 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 31 March 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
25. 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
26. 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 abovementioned 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.
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i. Main legal discussion and considerations
27. 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
by the Respondent as per the Settlement Agreement signed between the Parties, namely the first
three instalments thereunder.
28. 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.
29. The Chamber first noted that in the case at hand the Respondent bore the burden of proving that
it indeed complied with the financial terms of the contract concluded between the Parties.
30. Nonetheless, the Chamber noted that the Respondent, despite rejecting the claim in its entirety,
provided no evidence to prove the payment of the amounts claimed as outstanding by the
Claimant. Furthermore, no reasonable justification was presented by the Respondent for not
having complied with the terms of the Settlement Agreement. In particular, the explanation that
the penalty clause is disproportionate and that, allegedly, no default notice was submitted, were
insufficient in this regard.
31. Furthermore, after analysing the content of the acceleration clause contained in Clause 16 of the
Settlement Agreement, the Chamber concluded that it fulfilled the criteria of reciprocity and
proportionality, in line with its longstanding jurisprudence, and therefore was to be applied in the
case at hand to determine the amount of compensation payable by the Respondent to the
Claimant.
32. In view of the foregoing and bearing in mind the basic legal principle of pacta 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 Settlement
Agreement concluded between the Parties.
ii. Consequences
33. 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.
34. In this regard, the Chamber took note of the wording of Clause 16 of the contract, which
established that:
“In the event that the (Respondent) fails to make any of the above payments to the (Claimant)
at the stipulated dates, e.g. in the event of non-payment or late payment of any sum stipulated
in Clause 11 above, the (Claimant) will be entitled to:
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-
-
-
Immediately ask for the re-implementation of the transfer ban notified by the FIFA Dispute
Resolution Chamber to the TFF under Reference no. 18-01996/osv-drl and to claim for the
most serious disciplinary sanctions to be imposed on the (Respondent), should the
(Claimant) deem it appropriate;
Immediately receive from the (Respondent) an additional/extra payment in the amount of
EUR 200,000 (two hundred thousand euro) as fixed compensation for the breach of this
Settlement Agreement;
Immediately receive the full balance of the debt (principal and interest).”
35. In this context, the Chamber decided that the amount of EUR 400,000 became due upon the nonpayment of the first instalment due on 15 October 2021 as a result of the acceleration clause
contained in Clause 16 of the Settlement Agreement, as an outstanding amount, and EUR 200,000
as contractual penalty, as per the compensation clause also contained in Clause 16 of the
Settlement Agreement, is due to the Claimant by the Respondent.
36. 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 amount of EUR 400,000 as from the respective due dates for instalments falling due
before the date of the decision, and as from the date of the decision for instalments that would
have fallen due after the decision date, until the date of effective payment.
37. In this respect, the Chamber specified that the Claimant would have been entitled to interest of
5% p.a. applicable on the amount of EUR 400,000 as from the due date of the first instalment, as
a result of the acceleration clause making the entire sum payable immediately. However, taking
into consideration the Claimant’s request, as well as the legal principle of ne eat iudex ultra petita
partium, it decided that interest shall be payable from the respective due dates for instalments
falling due before the date of the decision, and as from the date of the decision for instalments
that would have fallen due after the decision date, until the date of effective payment.
38. Moreover, the Chamber highlighted that, in line with the principle of ne bis in idem, interest shall
not be applicable on the contractual penalty of EUR 200,000 stipulated in Clause 16 of the
Settlement Agreement, and only on the outstanding amount of EUR 400,000.
iii. Art. 12bis of the Regulations
39. 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.
40. To this end, the Chamber confirmed that the Claimant put the Respondent in default of payment
of the amounts sought, which had fallen due more than 30 days before, and granted the
Respondent a 10-day deadline to cure such breach of contract. In this respect, the argument
submitted by the Respondent, that no default notice had been received, was rejected by the
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Chamber based on the fact that the Claimant submitted not only proof of such default notice being
sent, but also of the Respondent replying to such default notice on 20 December 2021.
41. Accordingly, the Chamber confirmed that the Respondent had delayed a due payment without a
prima facie contractual basis. It followed that the criteria enshrined in art. 12bis of the Regulations
was met in the case at hand.
42. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. On account of the above and bearing in mind
that this is the 5th offense by the Respondent within the last two years, the Chamber decided to
impose a reprimand and a fine in the amount of USD 50,000, in accordance with art. 12bis par. 4
lit. b) and c), and par. 5 of the Regulations.
43. 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.
iv. Compliance with monetary decisions
44. 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.
45. 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.
46. 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.
47. 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.
48. 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.
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d. Costs
49. 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.
50. 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.
51. 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, Vieux Yakhya Sané, is partially accepted.
2.
The Respondent, Bursaspor Kulübü, has to pay to the Claimant, the following amounts:
-
EUR 25,000 as overdue amount, plus 5% interest p.a. as from 16 October 2021, until
the date of effective payment.
-
EUR 25,000 as overdue amount, plus 5% interest p.a. as from 16 November 2021, until
the date of effective payment.
-
EUR 25,000 as overdue amount, plus 5% interest p.a. as from 16 December 2021, until
the date of effective payment.
-
EUR 25,000 as overdue amount, plus 5% interest p.a. as from 16 January 2022, until the
date of effective payment.
-
EUR 25,000 as overdue amount, plus 5% interest p.a. as from 16 February 2022, until
the date of effective payment.
-
EUR 25,000 as overdue amount, plus 5% interest p.a. as from 16 March 2022, until the
date of effective payment.
-
EUR 25,000 as overdue amount, plus 5% interest p.a. as from 16 April 2022,
until the date of effective payment.
-
EUR 25,000 as overdue amount, plus 5% interest p.a. as from 16 May 2022, until the
date of effective payment.
-
EUR 200,000 as overdue amount, plus 5% interest p.a. as from 9 June 2022, until the
date of effective payment.
-
EUR 200,000 as overdue amount.
3.
Any further claims of the Claimant are rejected.
4.
A reprimand shall be imposed on the Respondent.
5.
A fine in the amount of USD 50,000 shall be imposed on the Respondent; full payment shall be
made 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
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▪
6.
Full payment of the amounts mentioned in point 2. (including all applicable interest) shall be made
to the bank account indicated in the enclosed Bank Account Registration Form.
7.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players if full payment of the
amounts 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 the ban shall be of
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.
8. The consequences shall only be enforced at the request of the Claimant in accordance with article
24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
9. 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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