Labour Disputes
Texto da decisão
REF FPSD-6361
Decision of the
Dispute Resolution Chamber
passed on 17 August 2022
regarding an employment-related dispute concerning the player Khaly
Iyane Thiam
BY:
Jon NEWMAN (USA)
CLAIMANT:
Khaly Iyane Thiam, Senegal
Represented by Ismet Bumin Kapulluoğlu
RESPONDENT:
Altay SK, Turkey
Represented by Ercan Sevdimbaş
Page 2
REF FPSD-6361
I. Facts of the case
1.
On 25 August 2020, the Senegalese player Khaly Iyane Thiam (hereinafter: the Claimant)
and the Turkish club Altay SK (hereinafter: the Respondent) concluded an employment
contract (hereinafter: the Contract) with the starting date of 26 August 2020 and expiry
date of 31 May 2022.
2.
Clause 3 of the Contract reads as follows:
“THE REMUNERATION OF THE PLAYER IS AMENDED AS FOLLOWS IF ALTAY SPOR KULÜBÜ IS
COMPETING IN THE TURKISH SUPER LEAGUE IN THE 2021‐2022 SEASON.
GUARANTEED REMUNERATION OF THE 2021‐2022 SEASON (IF ALTAY IS IN THE SUPER LEAGUE)
385.000 EURO
100,000 EURO TO BE PAID IN SEPTEMBER 2021.
35,000 EURO TO BE PAID IN DECEMBER 2021.
35,000 EURO TO BE PAID IN FEBRUARY 2022.
30,000 EURO TO BE PAID IN APRIL 2022.
THE SALARY OF 18.500‐EURO WILL BE PAID TO THE PLAYER, FOR TEN MONTHS STARTING FROM
SEPTEMBER 2021 AND INCLUDING JUNE 2022, ON THE FIRST WEEK OF EACH MONTH, FOR THE
2020‐2021 SEASON (IF ALTAY IS IN THE SUPER LEAGUE)
THE PLAYER WILL BE PAID AN ADDITIONAL PAYMENT OF 20.000 EURO IF HE PLAYS IN 25 OR
MORE SUPER LEAGUE MATCHES IN THE 2021‐2022 SEASON. (APPLICABLE ONLY FOR SUPER
LEAGUE MATCHES)
A HOUSE AND A CAR OF THE CLUB’S CHOICE WILL BE PROVIDED TO THE PLAYER FOR THE
DURATION OF THE CONTRACT”
3.
On 3 January 2022, the Claimant put the Respondent in default and requested the
payment of EUR 153,500 and the reimbursement of TRY 35,237.40 (for the
accommodation and permit renewal expenses) within 15 days
4.
On 14 January 2022, the Respondent provided two cheques in the amount of TRY 760,000.
II. Proceedings before FIFA
5.
On 15 June 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
Page 3
REF FPSD-6361
a. Position of the Claimant
6.
According to the Claimant, he is entitled to the following amounts for the 2021/22 season,
“as the Club competed in the Turkish Super League:
i. The amount of 200.000.-Euro, as down payment, in four instalments as follows:
a. 100.000.-Euro in September 2021,
b. 35.000.-Euro in December 2021,
c. 35.000.-Euro in February 2022 and
d. 30.000.-Euro in April 2022.
ii. The amount of 185.000.-Euro, as salaries, in ten equal instalments of 18.500.-Euro between
September 2021 and (including) June 2022, on the first week of each month.
iii. The amount of 20.000.-Euro, as a bonus, if the Player plays in at least 25 official Super
League matches in 2021/2022 season.”
7.
The Claimant states that the Contract expired naturally at the end of it term. However,
the Club failed to comply with its financial obligations towards the Player.
8.
The Claimant states that he became entitled to the total amount of EUR 405,000 in the
2021/2022 season and that he incurred expenses which the Respondent should have
covered in the total amount of TRY 57,737,40 corresponding to:
-
9.
TRY 1.720,40 for the renewal of the residence and working permits; and
TRY 56,017 for the accommodation expenses.
The Claimant submits that the Respondent only paid EUR 55,500 before the default notice
of 3 January 2022. After the default notice the Respondent “delivered a payment of 72.000.Euro and two cheques each in the amount of 760.000.-TL, with the respective payment dates
of 30 March 2022 and 30 April 2022”.
10. The Claimant submits that as of the date of claim, he has outstanding remuneration in
the total amount of EUR 184,691.63, as follows:
Page 4
REF FPSD-6361
11. The Claimant states that he is entitled to the performance bonus of EUR 20,000 as on 16
April 2022, he played his 25th official league match.
12. In addition, the Claimant stated that he had incurred in rental expenses in “the total
amount of TRY 22,500, consisting of the months of January and May 2022 in the amount of
TRY 4,500 each, with the respective payment dates are; 19.01.2022, 28.02.2022, 18.03.2022,
15.04.2022 and 17.05.2022”.
13. The Claimant filed the following requests for relief
a. to admit the present claim,
b. to order the Respondent to pay to the Claimant the total amount of 184.691,63.-Euro net as
outstanding remuneration alongside with its interests in the rate of 5% p.a. to accrue on each
instalment, starting from the respective due date and until the date of effective payment and
c. to order the Respondent to reimburse to the Claimant the rental expenses in the total
amount of 22.500.-TL, alongside with its interests in the rate of 5% p.a. to accrue on each
payment, starting from the date of their payment and until the date of effective
reimbursement.
b. Position of the Respondent
14. According to the Respondent, based on the evidence provided the Respondent had paid
to the Claimant the total amount of EUR 283,807.84.
15. The Respondent states that it is suffering a difficult financial position as “the crisis was
caused by the Turkish economy's excessive current account deficit and foreign-currency debt.
In combination and it is characterized by the Turkish lira (TRY) plunging in value, high inflation,
rising borrowing costs, and correspondingly rising loan defaults. Also, the covid-19 virus
pandemic disease has ruined the cash flow and the financial potential of the Club. The Turkish
currency, Lira, has lost about more than 60% of its value against the Euro since last year.
Because of this issue, there has been a delay of the payments.”
Page 5
REF FPSD-6361
16. The Respondent filed the following requests for relief
7.1 The reasons explained above we kindly request you to decide judgment of dismissal about
the present case.
7.2 Consider the amounts paid and good faith of the Respondent while evaluating the Claimant
requests according to the reasons explained above and according to the bank receipts which
was provided by the Respondent and setoff the mentioned amount from the Claimant's
requests.
c. Final comments of the Claimant
17. The Claimant was requested to comment on the alleged payments.
18. The Claimant requests the DRC to “disregard all evidence submitted by the Claimant, in
accordance with Art. 13 par. 1 of the Procedural Rules. It will be seen that neither of the
evidence were translated to one of the official languages and therefore, cannot be taken into
consideration.”
19. In addition, the Claimant underlines that the Respondent did not contest the request for
the reimbursement of the rental expenses, and “acknowledged their overdue debt to the
Claimant in the amount of 177.500.-Euro”.
20. The Claimant states that “the Respondent converts the two payments of 760.000.-TL to
50.000.-Euro, with the exchange rate of 15,20. However, it will be seen from the documentation
submitted with our statement of claim, that the exchange rates on the payment dates (of
30.03.2022 and 30.04.2022) are respectively 16,3625 and 15,6655”.
21. The Claimant reiterates his requests for relief.
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 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 15 June 2022 and submitted for
decision on 17 August 2022. Taking into account the wording of art. 34 of the July 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.
Page 6
REF FPSD-6361
23. 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 (June 2022
edition in force on the date of decision), he is competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between
an Senegalese player and a Turkish club.
24. 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 (July 2022 edition), and
considering that the present claim was lodged on 15 June 2022, the June 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 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.
c. Merits of the dispute
26. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge 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 he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
27. 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 payment of certain financial
obligations by the Respondent as per the contract, namely part of the salaries from
January 2022 (partially) to June 2022, a performance bonus and other remuneration due
to the Claimant.
28. In this context, the Single Judge acknowledged that his 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.
Page 7
REF FPSD-6361
29. The Single Judge 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 Single Judge noted that the evidence provided by the Respondent,
consisting of untranslated documents, without any further explanation or description,
does not prove beyond doubt 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 contract.
31. The Single Judge noted that the Claimant provided evidence of his entitlement to the
performance bonus of EUR 20,000 after having made 25 appearances for the Respondent
as per Clause 3 of the Contract.
32. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda,
which in essence means that agreements must be respected by the parties in good faith,
the Respondent is held liable to pay the Claimant the outstanding amounts deriving from
the Contract concluded between the parties, namely:
33. The Single Judge turned to the request of reimbursement of accommodation expenses,
in the amount of TRY 22,500, and he noted that according to Clause 3 of the Contract, the
Respondent was bound to provide “house and a car” to the Claimant. Thus, the Single
Judge determined that the Claimant is entitled to be reimbursed the amount claimed for
such concept.
34. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber in this regard, the Single Judge decided to award the Claimant
interest at the rate of 5% p.a. on the outstanding amounts as from the respective due
dates until the date of effective payment.
ii.
Compliance with monetary decisions
35. 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
Page 8
REF FPSD-6361
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.
36. 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.
37. 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.
38. 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.
39. 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.
d. Costs
40. 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 Single Judge decided that no procedural costs
were to be imposed on the parties.
41. 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.
42. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for
relief made by any of the parties.
Page 9
REF FPSD-6361
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Khaly Iyane Thiam, is accepted.
2.
The Respondent, Altay SK, has to pay to the Claimant, the following amount(s):
-
EUR 184,691.63 as outstanding remuneration plus 5% interest p.a. as follows:
On EUR 7,191.63 from 8 January 2022 until the date of effective payment;
On EUR 18,500 from 12 February 2022 until the date of effective payment;
On EUR 35,000 from 1 March 2022 until the date of effective payment;
On EUR 18,500 from 12 March 2022 until the date of effective payment;
On EUR 18,500 from 9 April 2022 until the date of effective payment;
On EUR 20,000 from 17 April 2022 until the date of effective payment;
On EUR 30,000 from 1 May 2022 until the date of effective payment;
On EUR 18,500 from 10 May 2022 until the date of effective payment;
On EUR 18,500 from 11 June 2022 until the date of effective payment;
-
Turkish Lira (“TRY”) 22,500 as reimbursement of expenses plus 5% interest p.a. as
follows:
On TRY 4,500 from 20 January 2022 until the date of effective payment;
On TRY 4,500 from 1 March 2022 until the date of effective payment;
On TRY 4,500 from 19 March 2022 until the date of effective payment;
On TRY 4,500 from 16 April 2022 until the date of effective payment;
On TRY 4,500 from 18 May 2022 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.
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.
Page 10
REF FPSD-6361
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
Page 11
REF FPSD-6361
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 12