DRC Overdue Payables
Texto da decisão
REF FPSD-4138
Decision of the Single Judge of
the DRC
passed on 21 January 2022
regarding an employment-related dispute concerning the player Leo
Schwechlen
BY:
Daan de Jong (Netherlands), Single Judge of the DRC
CLAIMANT:
Leo Schwechlen, France
Represented by Osama al Sabbagh
RESPONDENT:
Buyuksehir Belediye Erzurumspor, Turkey
Page 2
REF FPSD-4138
I.
Facts of the case
1.
On 5 October 2021, the French player, Leo Schwechlen (hereinafter: the Claimant or player),
and the Turkish club, Buyuksehir Belediye Erzurumspor (hereinafter: the Respondent or club)
signed an employment contract valid as from as from the date of signature until 31 May
2021.
2.
On 7 October 2021, the parties signed an amendment agreement, according to which the
Respondent undertook to pay the Claimant the amount of EUR 200,000, payable as follows:
EUR 22,224 as down payment payable on 1 November 2020;
EUR 22,222 as salaries payable between November 2020 and June 2021 at the end
of each month (8x).
3.
Art. 3.2 lit. c of the amendment agreement establishes under the title of “Inclusion of
Conditional Payments for the season 2020-2021”: “In the official league games of Süper Toto
Süper Lig – Edition 2020-2021 should the Player play at least 90 minutes in any league game,
the club shall remunerate the Player in the amount of 1,000 EUR as conditional payment
[…]”.
4.
On 6 August 2021, the Claimant put the Respondent in default and requested payment of
EUR 108,332, corresponding to his partial salaries of January and February 2021 and the full
salaries between March 2021 until June 2021, within 10 days.
5.
On 16 August 2021, the Claimant put the Respondent in default and requested payment of
EUR 135,332 within 10 days. In this default notice, the Claimant added the conditional
payment of EUR 27,000 in accordance with the amendment agreement.
6.
On 18 August 2021, the Respondent replied and argued that it remitted two cheques in the
amount of Turkish Lira 100,000 each.
7.
On 1 October 2021, the Claimant acknowledged receipt of the two cheques and put the
Respondent in default requesting payment of EUR 115,562 within 10 days. In this default
notice, the Claimant added the conditional payment of EUR 27,000 in accordance with the
amendment agreement.
Page 3
REF FPSD-4138
II. Proceedings before FIFA
8.
On 28 October 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
9.
The Claimant requested payment of EUR 115,562, corresponding to the partial salary of
March 2021 (EUR 21,896), the salaries of April until June 2021 (3x EUR 22,000) as well as the
conditional payment of EUR 27,000.
10. The player requested interest of 5% p.a. as of the due dates.
11. In his claim, he pointed out that the claimed amounts remained unpaid, even after his default
notices.
b. Position of the Respondent
12. In its reply, the Respondent requested to be granted time in order to negotiate for an amicable
solution.
13. The club held having acted in good faith, while trying to comply with its financial obligations,
but that due to COVID-19 and “force majeure” it is facing financial difficulties.
14. Furthermore, the Respondent requested that it would not be ordered to pay any penalties.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single Judge) analysed whether he was competent to deal with the case at hand. In this
respect, he took note that the present matter was presented to FIFA on 28 October 2021 and
submitted for decision on 21 January 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.
16. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the
Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art.
22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players (August 2021 edition),
he is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between an French player and a Turkish club.
Page 4
REF FPSD-4138
17. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (August 2021 edition), and
considering that the present claim was lodged on 28 October 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
18. The Single Judge 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 Single Judge 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
19. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, he started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
the Single Judge emphasised that in the following considerations he 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
20. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties dispute the outstanding remuneration the
player is entitled to.
21. In this context, the Single Judge acknowledged that its task was to detail to which amounts
the player is entitled to or if the club fulfilled its financial obligations as per contract.
22. On account of the above, the members of the Single Judge noted that the parties concluded
a contractual relationship as from 5 October 2021 until 31 May 2021 including the
remuneration set out in point I.2.
23. Consequently, the Single Judge took notice that the player requested payment of EUR
115,562, corresponding to the partial salary of March 2021 (EUR 21,896), the salaries of April
until June 2021 (3x EUR 22,000) as well as the conditional payment of EUR 27,000
Page 5
REF FPSD-4138
24. The Single Judge then stated that the Respondent did not dispute the outstanding amounts,
but held that COVID-19 led to a "financial difficulties".
25. Having said that, the Single Judge wished to refer to the fact that, in light of the worldwide
COVID-19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at
providing appropriate guidance and recommendations to member associations and their
stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and
ensure that any response is harmonised in the common interest. Moreover, on 11 June 2020,
FIFA has issued an additional document, referred to as FIFA COVID-19 FAQ, which provides
clarification about the most relevant questions in connection with the regulatory
consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.
26. For the present dispute, it is important to note that based on the COVID-19 Guidelines, as
well as the FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in
any specific country or territory. What is more, the COVID-19 Guidelines do not exempt an
employer from paying a player’s salary.
27. The Single Judge wished to emphasize that the Respondent failed to submit any
documentation in order to proof that it complied with FIFA’s COVID regulations regarding
unilateral variations.
28. In this context, the Chamber considered that the arguments raised by the Respondent cannot
be considered a valid reason for non-payment of the monies claimed by the Claimant, in other
words, the reasons brought forward by the Respondent in its defence do not exempt the
Respondent from its obligation to fulfil its contractual obligations towards the Claimant.
ii. Consequences
29. Consequently, the Single Judge decided that, in accordance with the general legal principle
of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding
remuneration in the total amount of EUR 114,896 plus 5% interest p.a. as of the respective
due dates.
30. Said amount is corresponding to the partial salary of March 2021 (EUR 21,896), the salaries
of April until June 2021 (3x EUR 22,000) as well as the conditional payment of EUR 27,000.
iii. Compliance with monetary decisions
31. In continuation, the Single Judge 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.
Page 6
REF FPSD-4138
32. To this end, the Single Judge confirmed that the player put the club in default of payment of
the amounts sought, which had fallen due more than 30 days before, and granted the club
a 10-day deadline to cure such breach of contract.
33. Accordingly, the Single Judge 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.
34. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the club. On account of the above and bearing in mind
that this is the first offense by the club within the last two years, the Single Judge decided to
impose a warning on the club in accordance with art. 12bis par. 4 lit. a) of the Regulations.
35. 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.
36. Finally, taking into account the applicable Regulations, the Single Judge 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.
37. In this regard, the Single Judge 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.
38. Therefore, bearing in mind the above, the Single Judge 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.
39. 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.
40. The Single Judge 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.
Page 7
REF FPSD-4138
d. Costs
41. The Single Judge 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.
42. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
43. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
Page 8
REF FPSD-4138
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Leo Schwechlen, is partially accepted.
2.
The Respondent, Buyuksehir Belediye Erzurumspor, has to pay to the Claimant, the following
amount(s):
- EUR 21,896 as outstanding remuneration plus 5% interest p.a. as from 1 April 2021 until the
date of effective payment;
- EUR 22,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2021 until the
date of effective payment;
- EUR 22,000 as outstanding remuneration plus 5% interest p.a. as from 1 June 2021 until the
date of effective payment;
- EUR 22,000 as outstanding remuneration plus 5% interest p.a. as from 1 July 2021 until the
date of effective payment;
- EUR 27,000 as outstanding remuneration plus 5% interest p.a. as from 1 July 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.
5.
The
Respondent
is
ordered
to
pay
a
fine
in
the
amount
of
USD 37,500. The fine is to be paid within 45 days of notification of the present decision to FIFA
to the bank account indicated on the next page.
6.
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. 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
Page 9
REF FPSD-4138
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
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 10