Labour Disputes
Texto da decisão
REF FPSD 3255
Decision of the
Dispute Resolution Chamber
passed on 16 February 2022
regarding an employment-related dispute concerning the player Mamadou
Traore
BY:
Frans de Weger (The Netherlands), Chairperson
Khalid Awad Al-Thebity (Saudi Arabia), member
Stefano Sartori (Italy), member
CLAIMANT:
Mamadou Traore, Mali
Represented by Oliver Ducrey
RESPONDENT:
Menemen Belediyespor, Turkey
Represented by Ali Topuz
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I.
Facts of the case
1.
On 21 January 2021, Mamadou Traore (the Claimant) and Menemen Belediyespor (the
Respondent) concluded an employment contract (the Contract) valid as of the same date until
31 May 2021.
2.
Pursuant to the Contract, the Respondent undertook to pay the Claimant EUR 8,000 as basic
wage for the 2020/2021 season, broken down as below:
•
•
•
•
EUR 2,000 on 28 February 2021
EUR 2,000 on 31 March 2021
EUR 2,000 on 30 April 2021
EUR 2,000 on 31 May 2021
3.
Furthermore, an additional bonus of EUR 3,000 has been agreed in case the Respondent had
participated in the play-offs for the season 2020/2021.
4.
According to art. 3 of the Contract:
“The CLUB has the right to extend this agreement for 1 (one) more year on the condition of
submitting a notification via public notary to the PLAYER and for information to the TFF
between the dates 01.05.2021 – 15.05.2021.
If the CONTRACT is extended by the CLUB as specified, the CLUB will pay the following fees to
the PLAYER:
For 2021/2022 season (in case the option is used):
• 3,000 EUR on 31.08.2021
• 3,000 EUR on 30.09.2021
• 3,000 EUR on 31.10.2021
• 3,000 EUR on 30.11.2021
• 3,000 EUR on 31.12.2021
• 3,000 EUR on 31.01.2022
• 3,000 EUR on 28.02.2022
• 3,000 EUR on 31.03.2022
• 3,000 EUR on 30.04.2022
• 3,000 EUR on 31.05.2022
The PLAYER will be entitled to 5,000 EUR Premium is the CLUB plays play-offs in the
2020/2021 season
(NOTE: Probably a typo in the contract, as it should refer to the 2021/2022 season)
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If the PLAYER scores 10 goals or assist at the official league matches, he will be entitled
to 5,000 EUR Bonus.
The CLUB will provide a flat to the PLAYER during the 2021/2022 season.”
5.
As per common international practice in the sector, the art. 5 of the Contract prescribed the
Claimant’s obligations towards the Respondent, amongst which it appears the duty to
participate to the team’s training sessions.
6.
In this context, under the clause entitled “Special Provisions”, the Contract prescribed the
following:
“The player hereby agrees that in case of a breach by the player of his obligations set forth
herein, the Club shall be entitled to fine the player penal sum of up to 20.000,00- Euro for
every breach, and that player shall pay this penal sum to the Club upon receipt of the Club’s
written request, and that Club shall be entitled to set off and compensate for this sum from or
out of the receivables the Player may have with the Club.”
7.
Beside the above, paragraph 4 of the Special Provisions stated:
“The Player accepts not to request any expenses with regard to -including but not limited withthe agency fee, car, flight tickets besides abovementioned payments. All of the aforesaid
expenses (not included medical expenses) are included in abovementioned payments."
8.
By undated letter addressed to the Claimant and TFF, the Respondent notified the unilateral
extension of the employment agreement for the season 2021/2022, in accordance with art. 3
of the contract.
9.
On 31 May 2021, the Claimant put the Respondent in default of EUR 5,000 as outstanding
remuneration in connection with the months of March 2021 (half), April 2021 and May 2021.
10. Contextually the Claimant granted the Respondent a term of 15 days to remedy the alleged
breach and enclosed copy of the VISA and return-flight ticket expenses.
11. On 15 June 2021, the Respondent communicated via WhatsApp to the Claimant, informing
the latter that the first pre-season team meeting would have been held on 21 June 2021.
12. On 6 July 2021, a second letter of default was sent by the Claimant, granting further 10 days
as final deadline.
13. On 19 July 2021, the Claimant notified the Respondent of the unilateral termination of the
Contract due to the overdue payables.
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14. By letter dated 28 July 2021, the Turkish Football Federation confirmed the termination of the
Contract.
II. Proceedings before FIFA
15. On 9 August 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
16. The Claimant alleged the Respondent’s noncompliance with its financial obligations set under
art. 3 of the Contract.
17. In this respect, the Claimant requested to be awarded the outstanding remuneration connected
with the months of March 2021 (50%), April 2021 and May 2021, for a total amount of EUR
5,000.
18. Lastly, the Claimant requested the imposition of a 5% p.a. interest as of the respective due
dates.
b. Position of the Respondent and Counterclaim
19. In its reply to the claim, the Respondent first argued that the unilateral termination by hand of
the Claimant occurred without just cause, because the requirements prescribed by art. 14bis
of RSTP had not been met at the time of the default notice (i.e. 31 May 2021) as said date was
still part of the deadline stipulated in the Contract for the salary of May 2021.
20. Therefore, in the Respondent’s view, when put in default by the Claimant, the Respondent was
in debt towards the latter of an amount corresponding to less than 2 months-salaries, as only
half salary of March 2021 and the full salary of April 2021 were due at that time.
21. Furthermore, the Respondent argued that the Claimant failed to serve the second default
notice, hence the Respondent had never been put in default according to the criteria set under
FIFA RSTP, which allegedly prevented the Turkish club from remedying the breaches.
22. Moreover, the Respondent pointed out the both the referred notice letters did not contain any
express indication regarding the Claimant intention to terminate the Contract in case of
Respondent’s noncompliance with the alleged breaches, hence also under this point of view
such letters would result inadequate with respect to the criteria set under the RSTP.
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23. Secondly, the Respondent accused the Claimant of having skipped, without just cause, the preseasonal team meetings held on 6 and 7 July 2021, which in the Respondent’s view would
clearly constitute a violation of the Claimant’s obligations as set under art. 5 of the Contract.
24. With the above in mind, the Respondent declared that in spite of the latter’s decision to extend
the Claimant’s contract for one more season and despite the fact that the Claimant was never
fined for the above-mentioned breaches, the Respondent has never waived its right to fine the
Claimant and the termination of the Contract by the latter, without any valid notice, prevented
the Respondent from exercising such right.
25. As a consequence, the Respondent decided to lodge a counterclaim, demanding a
compensation for the Claimant’s breach of the Contract without just cause.
26. In this respect, the Respondent demanded the amount of EUR 30,000 as corresponding to the
residual value of the extended Contract, namely until the end of the 2021/2022 season.
27. Furthermore, the Respondent requested 5% interest on the above compensation running as
of 19 July 2021.
c. Claimant’s replica and reply to the counterclaim
28. In its replica, the Claimant alleged that the Respondent’s arguments were submitted in bad
faith.
29. In particular, and as an example of the Respondent’s bad faith, the Claimant referred that the
Respondent paid the salary of February on 29 March 2021 and despite the fact that the due
date was 28 February 2021, whereas 50% of the March’ salary has been paid only on 22 April
2021.
30. Furthermore, the Claimant remarked that even considering incorrect the default notice issued
on 31 May 2021 because not fully meeting the criteria set under art. 14bis of the RSTP,
nonetheless at the time of the termination the Respondent was largely in delay of the contested
amounts.
31. In this context, the Claimant alleged to have been unable to join the team in July as requested
from the Respondent exactly because of the latter’s misconduct, having the Claimant been
deprived of the possibility to travel back to Turkey, either due to the lack of payments and
because the Respondent failed to pay the Claimant’s return-flight ticket and VISA.
32. Lastly, the Claimant highlighted the fact that the Respondent has never disputed the existence
and quantum of the outstanding remuneration connected with the aforementioned months
of March, April and May 2021.
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d. Respondent’s duplica
33. In its final submission, the Respondent insisted on the fact that the second default notice dated
6 July 2021 has not been correctly served to the club and that the first one did not meet the
requirements set by FIFA RSTP under art. 14bis.
34. Besides the above, the Respondent alleged that, in addition to the sum of EUR 1,000 paid as
50% of the salary of March 2021 and acknowledged by the same Claimant, the Respondent
paid further 12,000 Turkish Liras to the Claimant between 11 March and 3 April 2021,
corresponding approximately to EUR 1,300.
35. Therefore, the Respondent is of the opinion that by adding said amounts to the sums already
acknowledged as received by the Claimant (i.e. EUR 3,000), the outstanding remuneration
effectively existing at the moment of termination of the Contract would correspond to EUR
3,700, namely less than two month-salaries, hence there was no ground for the unilateral
termination.
36. Furthermore, the Respondent rebut the Claimant’s argument regarding to his absence from
the pre- seasonal meetings and referring to the VISA / flight tickets, as these expenses were
not part of the Respondent’s duties but rather excluded by the same Contract under par. 4 of
the Special Provisions.
37. In view of the above, the Respondent is of the opinion that the Claimant cannot therefore
invoke the principle of “exceptio non adimpleti contractus”, as his refusal to comply with the
obligation to take part in the team training sessions in July does not appear proportionate to
the Respondent’s fail to pay an amount corresponding to less than two month-salaries.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
38. 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, the Chamber
took note that the present matter was presented to FIFA on 9 August 2021 and submitted for
decision on 16 February 2021. 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.
39. Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. b) 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), it is
competent to deal with the matter at stake, which concerns an employment-related dispute
with an international dimension between a Malian player and a Turkish club.
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40. 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 (August 2021 edition), and
considering that the present claim was lodged on 9 August 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
41. 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
42. 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.
i. Main legal discussion and considerations
43. The foregoing having been established, the Chamber moved to the substance of the matter
and took note of the fact that while the player claims the payment of outstanding salaries only,
the club deems that the player unilaterally terminated their employment contract without just
cause on 19 July 2021 and lodged a counterclaim against him, requesting the payment of
compensation. The Chamber deemed it appropriate to point out that, even though it remained
undisputed that the contract was in fact extended until 31 May 2022 and that the player
prematurely terminated it on 19 July 2021, the player did not amend his original claim for
overdue payables in his reply to the counterclaim, and did not request any type of
compensation for breach of contract by the club.
44. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the amounts claimed by the player had in fact
remained unpaid by the club and, if so, whether the latter had a valid justification for not
having complied with its financial obligations. Considering the counterclaim of the club, the
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Chamber deemed that it shall also establish whether the player had or not a just cause to
terminate the contract on 19 July 2021.
45. The Chamber first noted that, with regard to the allegedly outstanding amounts, the club bore
the burden of proving that it indeed complied with the financial terms of the contract
concluded between the parties or to provide a reasonable justification for not having done so.
46. In this respect, the Chamber noted that the club provides a few payment receipts in order to
prove the payment of certain amounts claimed as outstanding, but mainly disputes the validity
of the default notices sent by the player and considers that the amounts allegedly outstanding
are not relevant enough to justify the termination of the contract by the player.
47. As to the payment receipts provided by the club, the Chamber noted that the ones dated 29
March 2021 and 22 April 2021 appear to be connected to the salaries of February 2021 and
March 2021 (50%). The additional 2 payments dated 11 March 2021 and 3 April 2021,
respectively amounting to 5,000 Turkish Liras (approx. EUR 561) and 7,000 Turkish Liras (ca.
EUR 739) appear to refer to contractual match bonuses, and shall therefore not be taken into
account as evidence of payment of the monthly salaries. Thus, the Chamber concluded that
the club did not meet the burden of proving the payment of the player’s salaries for March
(50%), April and May 2021.
48. 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
Chamber could already conclude that the club is held liable to pay the player the outstanding
amounts deriving from the contract concluded between the parties.
49. As to the default notices disputed by the club and the latter’s allegation that the player did not
have a just cause to terminate the contract, the Chamber first established that the second
default notice dated 6 July 2021 indeed cannot be taken into consideration for the analysis of
the just cause, as the player failed to provide evidence that it was effectively served. As to the
default notice of 31 May 2021, which the club claims not to comply with the formal prerequisites of art. 14bis of the Regulations (only 1.5 salaries outstanding at the time of notice),
the Chamber understood a) that on the date of termination, i.e. 19 July 2021, more than 2
salaries were outstanding, b) that the club had been previously put in default of payment and
c) that it de facto had more than 15 days to remedy the default and still did not. Thus, the
Chamber deems that the player terminated the contract on 19 July 2021 with just cause.
Considering that the player limited his claim to the payment of outstanding salaries for half
March, full April and May 2021, no amount of compensation is granted to him, in order to
avoid that the decision is granted ultra petita. The counterclaim of the club is rejected on the
basis of the foregoing.
50. For the sake of completeness, the Chamber mentioned that the player’s alleged absence to the
team meetings of 6 and 7 July 2021 is by no means a valid justification for the non-payment
of his salaries for the months of half March, full April and May 2021; not only the non-payment
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timely precedes the absences, but the latter are also too short (2 days) to be considered as a
valid justification for the non-payment of 2.5 monthly salaries. Finally, the Chamber reminded
the parties of the legal principle of “exceptio non adimpleti contractus”, which allows a party
to withhold his or her own performance until the other party has duly performed his or
her obligations under the contract.
ii. Consequences
51. Having stated the above, the Chamber decided that the club must pay the player outstanding
remuneration in the total amount of EUR 5,000, with interest of 5% p.a. as from the due dates
until effective payment, in the following manner:
EUR 1,000 as outstanding remuneration plus 5% interest p.a. as from 1 April 2021
until the date of effective payment.
EUR 2,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2021
until the date of effective payment.
EUR 2,000 as outstanding remuneration plus 5% interest p.a. as from 1 June 2021
until the date of effective payment.
52. The player’s claim is accepted and the club’s counterclaim is rejected.
iii. Compliance with monetary decisions
53.
Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
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.
54.
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.
55.
Therefore, bearing in mind the above, the Chamber decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification of
the decision, failing which, at the request of the creditor, a ban from registering any new
players, either nationally or internationally, for the maximum duration of three entire and
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consecutive registration periods shall become immediately effective on the club in
accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
56.
The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
57.
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. 24bis par.
8 of the Regulations.
d. Costs
58.
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.
59.
Furthermore, 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.
60.
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, Mamadou Traore, is accepted.
2.
The Respondent, Menemen Belediyespor, has to pay to the Claimant, the following amount:
EUR 1,000 as outstanding remuneration plus 5% interest p.a. as from 1 April 2021
until the date of effective payment.
EUR 2,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2021
until the date of effective payment.
EUR 2,000 as outstanding remuneration plus 5% interest p.a. as from 1 June 2021
until the date of effective payment.
3.
The counterclaim of the Respondent, Menemen Belediyespor, is 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 (February 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.
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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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