DRC Overdue Payables
Texto da decisão
REF. FPSD-11607
Decision of the
Dispute Resolution Chamber
passed on 25 January 2024
regarding an employment-related dispute concerning
the player Kevin Olivier Soni
BY:
Clifford HENDEL (USA), Chairperson
Mario FLORES CHEMOR (Mexico), member
Angela COLLINS (Australia), member
CLAIMANT/COUNTER-RESPONDENT:
Kevin Olivier Soni, Cameroon
Represented by Madou Kone
RESPONDENT/COUNTER-CLAIMANT:
Yukatel Adana Demirspor A.S., Türkiye
Represented by Umur Varat and Aygin Kuruloglu
pg. 2
REF. FPSD-11607
I. Facts of the case
1.
On 4 March 2023, the Cameroonian player, Kevin Olivier Soni (hereinafter: the player or
the Claimant/Counter-Respondent) and the Turkish club, Adana Demirspor A.S.
(hereinafter: the club or the Respondent/Counter-Claimant) concluded an employment
contract (hereinafter: the contract), valid as from the date of its signature until 31 May 2023.
2.
The season 2022/2023 in Türkiye, according to the information contained in the Transfer
Matching System (TMS) came to an end on 30 June 2023.
3.
According to clause 3 of the contract, the player is entitled to receive from the club – inter
alia – a total fixed remuneration of EUR 195,000, as follows:
-
EUR 39,000 by 31 March 2023;
-
EUR 39,000 by 30 April 2023;
-
EUR 39,000 by 31 May 2023;
-
EUR 39,000 by 30 June 2023;
-
EUR 39,000 by 31 July 2023.
4.
On 6 February 2023, Türkiye suffered a series of earthquakes, affecting more than 14
million people and different regions of the country, including the province of Adana, where
the club is based.
5.
On 7 February 2023, the Turkish Football Federation (TFF) suspended all football activities
in the country. On 10 February 2023, the club withdrew from the relevant competition in
Türkiye, with the consent of the TFF.
6.
The football competitions were resumed in Türkiye, by decision of the TFF, on 3 March
2023.
7.
By means of his letter dated 2 August 2023, the player put the club in default of payment
in the amount of EUR 185,000, corresponding to the alleged unpaid part of the total fixed
remuneration due to him under the contract, thereby granting the club a deadline of 10
days to cure its breach.
8.
Thereto, the club replied with its email of 10 August 2023, whereby the club – inter alia –
rejected the allegations of the player and stressed that all the player’s financial dues had
been paid.
pg. 3
REF. FPSD-11607
II. Proceedings before FIFA
a. Position of the player
9.
On 1 September 2023, the player lodged a claim against the club before FIFA, requesting
to be awarded outstanding remuneration in the total amount of EUR 185,000, plus 5%
interest p.a. as from the respective due dates; amount broken down by the player as
follows:
-
EUR 29,000 corresponding to the partially unpaid instalment due by 31 March 2023;
-
EUR 156,000 corresponding to the fully unpaid instalments due by the end of April,
May, June and July 2023 in the amount of EUR 39,000 each.
10. In his claim, the player argued that despite having complied with his contractual
obligations, the club failed to remunerate him, insofar as the latter – during the whole
contractual duration – only made one payment of EUR 10,000 to the player. In view of the
above and referring to his default notice of 2 August 2023, the player argues that the club
shall be ordered to pay the remainder of the player’s financial dues, plus interest.
b. Position of the club
11. In its reply and counterclaim, the club argued – inter alia – the following:
12. That the club went through a difficult financial situation following the earthquakes that
occurred in Türkiye and especially affected the city of Adana.
13. That the club made payments for a total amount of EUR 75,574 in favour of the player,
payments that correspond to the player’s contractual remuneration (EUR 10,000), flight
tickets’ expenses, hospital expenses and accommodation expenses, broken down as
follows:
-
EUR 41,941 as flight tickets’ expenses (note: documentation completely untranslated).
In this regard, the club presents 15 different documents as proof of payment of said
total amount. Out of those 15 bills, 5 are signed by the player (pages no. 39-54) – in
particular, those 5 bills refer to the following amounts:
-
EUR 3,520 paid on 29 March 2023;
EUR 1,260 paid on 28 April 2023;
EUR 216 paid on 22 May 2023;
EUR 23 paid on 23 May 2023;
EUR 1,342 paid on 30 May 2023.
pg. 4
REF. FPSD-11607
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EUR 12,576 as accommodation expenses (Sheraton hotel) – the club provides a
document signed by the player whereby the latter accepts that the club deducts the
hotel costs from his remuneration, the expenses being included in a bill issued by the
Sheraton Hotel on 8 June 2023 that is signed by the player.
-
EUR 11,056 as hospitalization expenses (for the player’s wife) – the club provides a
document signed by the player whereby the latter would acknowledge owing the club
said amount as hospitalization expenses and authorize the club to deduct it from the
player’s remuneration.
14. That, between 10 February and 1 June 2023, the player’s agent lent EUR 150,000 to the
player, amount that the player did not pay back to the agent and that was paid to the agent
by the club on the player’s behalf. The club holds that it became the player’s creditor after
this transaction.
15. In view of the above, claiming having paid to the player EUR 75,574 and covered the player’s
credit vis a vis his agent in the amount of EUR 150,000, the club argues that it has paid the
total amount of EUR 225,574 to the player, which means that the club has overpaid an
amount of EUR 30,574 (225,574 – 195,000 = 30,574), that the club now claims.
c. Player’s replica and reply to the club’s counterclaim
16. In his replica, the player rejected the arguments brought forward by the club maintained
the following:
17. That the evidence provided by the club for the alleged flight expenses incurred is not lawful
as: 1.) some pertain to reservations made by the club, in bad faith, that never crystalized in
purchases of flight tickets, the club never informed the player that flight tickets’ expenses
were to be deducted from this salary (which is an unlawful practice) – reason which the
player never issued any kind of document acknowledging any such authorization to the
club; 2.) that it is not true that the club incurred in expenses of up to EUR 41,941 in flight
tickets during a period of 4 months.
18. That the player only signed the document whereby he accepted that the club deducted the
hotel costs from his remuneration because the club forced him to do so, as he was not
allowed to get out of the hotel if he did not do so. Thus, arguing that he signed said
document under duress, the player argues that said deduction cannot be considered valid.
19. As for the medical costs, the player argues that he only signed the document provided by
the club because he had no money, as the club failed to substantially pay his remuneration
since the beginning of the contract.
pg. 5
REF. FPSD-11607
20. Concerning the allegations of the club that a cession of credits occurred by which the club
subrogated itself in the position of the player as debtor of the player’s agent and, in that
position, paid to the player’s agent the amount allegedly owed by the player to said
individual in the amount of EUR 150,000, the player frontally rejected it, as well as having
received said amount from his alleged agent and argued that no such agreement ever
existed between the player and the club and that the club cannot in any logic argue that a
deduction of EUR 150,000 from the player’s financial due shall be admitted.
d. Club’s final comments
21. In its final comments, the club held the following:
22. As of the flight tickets’ expenses, the club stressed that the contract does not provide for
any right of the player to be provided flight tickets and that, therefore, their payment
corresponds to the player. In particular, in order to demonstrate that the player was very
much aware of its obligation to pay said flight tickets, the club referred to the player’s
signature stamped on the abovementioned 5 bills (see point no. 13.2.1 supra). Moreover,
along with its duplica and in order to reboot the player’s allegations that the evidence
provided pertains only to bookings, the club provided extensive evidence among which the
different electronic tickets (translated into English) of the respective flights are presented.
It must be noted that the passengers (beneficiaries) of said flight tickets were, allegedly:
the player, his wife and “friends”. In this context, while referring again to the evidence
provided, the club claims that the player shall be ordered to pay the amount of EUR 41,941.
23. As for the hotel expenses, the club insisted on the fact that the contract does not provide
for any such entitlement in favour of the player and that, from the document written and
signed by the player, it is evident that the player undertook to repay to the club the
accommodation costs incurred by the latter at the Sheraton Hotel in the amount of EUR
19,518.
24. Concerning the medical costs incurred by the player for his wife, the club reiterated its
previous arguments.
25. That, after the earthquake, the club started to recover and, upon being reached out by the
player’s agent, the club – in good faith – paid to the player’s agent the amounts due by the
player to the latter, amounts that – summed up – amount to EUR 150,000, which shall be
deducted from the player’s contractually agreed remuneration. Furthermore, the club
wished to stress that as proof thereof must serve the bills of exchange signed by the player,
whereby the latter accepted the total amount of EUR 150,000 from the player’s agent.
26. In this context, the club reiterated its previous position and requested the player be
ordered to pay to the club the amount of EUR 30,574 (see point 15. supra).
pg. 6
REF. FPSD-11607
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. 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 1 September 2023 and
submitted for decision on 25 January 2024. Taking into account the wording of art. 34 of
the March 2023 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.
28. 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 – May 2023 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 Cameroonian
player and a Turkish club.
29. 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 (May 2023 edition) and
considering that the present claim was lodged on 1 September 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
30. 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
31. 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.
pg. 7
REF. FPSD-11607
i. Main legal discussion and considerations
32. The foregoing having been established, the Chamber moved to the substance of the
matter, and underscored that, from the allegations of the parties, it remains undisputed
that, out of the total fixed remuneration due to the player as per the contract, the club only
paid directly to the player the amount of EUR 10,000 as salary payment.
33. Thus, continued the Chamber, in order to determine if the club still owes to the player the
remainder of the player’s fixed remuneration (EUR 185,000), the allegations of the parties
and the evidence submitted shall be analysed.
34. In order to do so, the DRC stressed that the following categories will be presented:
A. Flight tickets’ expenses:
35. In this regard, the Chamber highlighted that is vital to recall that the contract does not state
that it is the obligation of the club to provide flight tickets to the player. However, continued
the Chamber, that fact alone does not necessarily mean that any flight ticket purchased by
the club for the player or for third parties (allegedly the player’s wife and other friends)
shall be directly billed to the player or, what is more, deducted from his remuneration. For
such a deduction to be considered as lawful, explained the DRC, the consent of the player
thereto is necessary. In view of the aforesaid, the Chamber established that, from the
payment proof concerning flight tickets that has been provided by the club, only 5 bills
seem to contain the player’s acceptance for such costs to be charged to him.
36. Specifically, out of the amount of EUR 41,941 that the club requests for this consideration,
only the amount of EUR 6,361 counts with the player’s acceptance for its payment to be
charged to him:
-
EUR 3,520 paid on 29 March 2023;
EUR 1,260 paid on 28 April 2023;
EUR 216 paid on 22 May 2023;
EUR 23 paid on 23 May 2023;
EUR 1,342 paid on 30 May 2023.
37. In this respect, the DRC deemed it important to highlight that the evidence provided by the
club in this regard along with its reply and counterclaim is untranslated and would not have
been considered (cf. art. 13 para. 3 of the Procedural Rules) if the club had not provided,
along with its final comments, further supporting documentation among which the
electronic tickets are presented in a translated fashion (into English).
38. Consequently, the Chamber decided that the amount of EUR 6,361 shall be considered as
lawfully deducted from the player’s fixed remuneration.
pg. 8
REF. FPSD-11607
B. Hotel expenses:
39. Similarly, continued the Chamber, the club did not undertake – under the contract or by
any other means – to provide the player with accommodation or to pay his housing
expenses but, again similarly, explained the Chamber, if the club paid such expenses, it
cannot be directly concluded that it is entitled to claim those back from the player as the
Chamber cannot determine if those expenses were willingly and freely covered by the club
or not.
40. However, in casu, the club has provided sufficient evidence in order to demonstrate that
the player accepted to cover the costs incurred by the latter in the Sheraton Hotel on 8
June 2023 in the total amount of EUR 12,576, as the club provided a document whereby
the player explicitly accepted to cover those expenses.
41. Consequently, the Chamber decided that the amount of EUR 12,576 shall be considered as
lawfully deducted from the player’s fixed remuneration for this concept.
C. Medical costs for the player’s wife:
42. In this regard, the Chamber also noted that the club did not undertake – under the contract
or by any other means – to cover the player’s or his relatives’ medical costs but (again), if
the club paid such expenses, it cannot be directly concluded that it is entitled to claim those
back from the player as we cannot determine if those expenses were willingly and freely
covered by the club or not.
43. However, in casu, the club has provided evidence in order to demonstrate that the player
accepted to cover the medical costs incurred by the player’s wife, as the club provided a
document whereby the player explicitly authorized the club to deduct it from his
remuneration.
44. Consequently, the DRC concluded that the amount of EUR 11,056 shall be considered as
lawfully deducted from the player’s fixed remuneration for this consideration.
D. Alleged cession of credits with the player’s agent:
45. In this regard, the Chamber acknowledged that the player firstly rejects having received the
amount of EUR 150,000 from his alleged agent and that, even if he had received it, quad
non, the club is in no position to buy the alleged debt of the player to the player’s agent and
then compensate such credit with the player’s financial dues as per the contract.
46. In this regard, the Chamber decided that the argument of the player must be upheld, as:
1.) the club has not proven that the player did accept a loan of EUR 150,000 from his alleged
agent and; 2.) any sort of compensation of credits requires the agreement of the relevant
creditor and the debtor.
pg. 9
REF. FPSD-11607
47. In casu, the Chamber determined that, insofar as the club has neither proven that the
player’s agent held a credit against the player, nor that the club and the player agreed to
compensate such credit with the player’s financial dues under the contract, any payment
eventually performed by the club in favour of a third person (such as the player’s alleged
agent) cannot be used to deduct the player’s salaries.
48. Thus, the argumentation of the club that the amount of EUR 150,000 shall be deducted
from the player’s receivables was rejected by the Chamber.
ii. Consequences
49. 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/Counter-Claimant.
50. The Chamber observed that, out of the total amount of EUR 195,000 that was due to the
player as per the contract, the amount of EUR 39,993 needs to be deducted on the basis of
the following breakdown:
- EUR 10,000 (duly paid by the club at the beginning of the contractual relationship);
- EUR 6,361 (flight tickets’ expenses accepted by the player with his signature);
- EUR 12,576 (hotel expenses accepted by the player with his signature):
- EUR 11,056 (medical costs for the player’s wife accepted by the player with his signature).
51. In view of the above, considering that out of the total remuneration due the player as per
the contract, i.e. EUR 195,000, the club either paid or is entitled to lawfully deduct the
amount of EUR 39,993, the player is entitled to receive the different between both
amounts, i.e. EUR 155,07. As a consequence, and in accordance with the general legal
principle of pacta sunt servanda, the Chamber decided that the Respondent/CounterClaimant is liable to pay to the player the total amount of EUR 155,07.
52. In addition, 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 at the rate of
5% p.a. on the amount of EUR 155,07, as follows:
-
On the amount of EUR 38,007, as from 1 May 2023 until the date of effective
payment;
On the amount of EUR 39,000, as from 1 June 2023 until the date of effective
payment;
pg. 10
REF. FPSD-11607
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On the amount of EUR 39,000, as from 1 July 2023 until the date of effective
payment;
On the amount of EUR 39,000, as from 1 August 2023 until the date of effective
payment.
53. In view of all of the above, the Chamber declared that the claim of the player is partially
accepted.
54. What is more, the Chamber declared that the counterclaim of the club is rejected.
iii. Overdue payables’ sanction (art. 12bis of the Regulations)
55. 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.
56. To this end, the Chamber 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.
57. 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.
58. 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 Chamber decided to
impose a warning on the club in accordance with art. 12bis par. 4 lit. a) of the Regulations.
59. 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
60. 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.
pg. 11
REF. FPSD-11607
61. 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.
62. Therefore, bearing in mind the above, the DRC decided that the Respondent/CounterClaimant must pay the full amount due (including all applicable interest) to the
Claimant/Counter-Respondent within 45 days of notification of the decision, failing which,
at the request of the Claimant/Counter-Respondent, 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/Counter-Claimant in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
63. The Respondent/Counter-Claimant shall make full payment (including all applicable
interest) to the bank account provided by the Claimant/Counter-Respondent in the Bank
Account Registration Form, which is attached to the present decision.
64. 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
65. 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.
66. 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.
67. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 12
REF. FPSD-11607
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Kevin Olivier Soni, is partially accepted.
2.
The Respondent/Counter-Claimant, Yukatel Adana Demirspor A.S., must pay to the
Claimant/Counter-Respondent the following amount(s):
- EUR 155,007 as outstanding remuneration plus 5% interest p.a. as follows:
-
On the amount of EUR 38,007, as from 1 May 2023 until the date of effective
payment;
-
On the amount of EUR 39,000, as from 1 June 2023 until the date of effective
payment;
-
On the amount of EUR 39,000, as from 1 July 2023 until the date of effective payment;
-
On the amount of EUR 39,000, as from 1 August 2023 until the date of effective
payment.
3.
Any further claims of the Claimant/Counter-Respondent are rejected.
4.
The counterclaim of the Respondent/Counter-Claimant is rejected.
5.
A warning is imposed on the Respondent/Counter-Claimant in accordance with art. 12bis
of the Regulations on the Status and Transfer of Players.
6.
Full payment (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
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent/Counter-Claimant 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.
pg. 13
REF. FPSD-11607
8.
The consequences shall only be enforced at the request of the Claimant/CounterRespondent in accordance with art. 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
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 Governing the Football
Tribunal).
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pg. 14