DRC Overdue Payables
Texto da decisão
REF FPSD-6703
Decision of the
Dispute Resolution Chamber
passed on 10 November 2022
regarding an employment-related dispute concerning the player
Samuel Rodrigue Wouahi Yohou
BY:
Lívia Silva Kägi (Brazil), Acting Deputy Chairperson
Khalid Awad Al-Thebity (Saudi Arabia), member
Stijn Boeykens (Belgium), member
CLAIMANT:
Samuel Rodrigue Wouahi Yohou, France
Represented by Selçuk Demir
RESPONDENT:
Tuzlaspor A.S.. Türkiye
Represented by Ercan Sevdimbaş
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I. Facts of the case
1. On 31 August 2020, the French player Samuel Rodrigue Wouahi Yohou (hereinafter: the
Claimant or the Player) and the Turkish club Tuzlaspor (hereinafter: the Respondent or the
Club) concluded an employment contract (hereinafter: the contract), valid for the
2020/2021 football season.
2. In accordance with clause 4 of the contract: “this contract enters into force on signature date
and be effective during the football season of 2020/2021 and 2021/2022 if extension option is
used by the Club”.
3. As per the information available in the Transfer System Matching (TMS), the Turkish
football seasons runs from 1 August until 31 May each year.
4. In accordance with clause 6.1 of the contract, the Player was entitled, inter alia, to the
following amounts:
-
2020/2021 season:
• A salary of EUR 130,000 to be paid in 10 equal instalments between September
2020 and June 2021. The referred instalments were due on the last day of the
relevant months.
• A bonus of EUR 50,000 in the event the Club promotes to the Super league (i.e.,
the local first division). Said amount will be calculated considering the matches
played by the Player in accordance with the pro-rata provisions.
5. In accordance with the second paragraph of clause 6.1 of the contract :
“the Club has the right to extend the contract between the parties for (1) one additional year,
by providing a notification to the Player between the dates of 10.01.2021 – 30.05.2021. In the
event that the Club extends the Contract with the specified conditions the Club will make a
payment to the player under the following conditions: for 2021-2022 football season the total
amount EUR 183.750.-EURO…”
6. On 28 June 2021, the parties signed a “bilateral agreement and release protocol” (hereinafter:
the bilateral agreement). In accordance with it:
“…[the parties] have agreed that there is a total net receivable of 61.000 EURO for the
2020/2021 football season within the scope of the Professional Football Player Contract
with the start date of 13.08.2020.and end of 31.05.2021 The parties have agreed that
45,000 EURO will be paid in return for the aforementioned 61.000 EURO. 25,000 EURO
of the aforementioned 46,000 EURO will be paid on the date of signature, and the
remaining 21,000 EURO will be paid on 15.09.2021.
In this context, apart from the above-mentioned 46,000 EURO payment, the Player
irrevocably waives all claims and litigation rights related to a total net outstanding fee
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of 15.000 EUR that was due and unpaid until the conclusion of this Protocol and that
this amount is left to the Club as compensation…”.
7. On 28 June 2021, the Respondent paid the Claimant the amount of EUR 25,000.
8. On 30 August 2021, the Player signed a new contract with the French club USL Dunkerque.
As per the information available in TMS, in the transfer instruction n° 423172, a letter from
the Respondent stated that “[the player]’s contract with [the Respondent] has been over on
the date 31.05.2021”.
9. On 2 June 2022, the Claimant put the Respondent in default for the unpaid salary
amounting to EUR 36,000 and a compensation of EUR 183,750. The Claimant granted a 10day deadline to the Club to comply with its contractual obligations.
10. After reception of the default notice on an unspecified date before 13 June 2022, the
Respondent replied to the Claimant indicating that “the Player has no more due and unpaid
receivables from the Club” and that the Respondent respected all its liabilities.
11. On 13 June 2022, the Claimant requested the Respondent a copy of the bilateral
agreement.
II. Proceedings before FIFA
12. On 13 July 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
13. The Claimant requested EUR 36,000 corresponding to the outstanding remuneration for
the 2020/2021 football season and EUR 183,750 as compensation for the 2021/2022
football season.
14. With regards to the compensation, the Claimant indicated that the club has unilaterally
refused to extend the contract, whereas the Claimant should have seen his contract with
the Respondent continue for the season 2021/2022. This unilateral faculty to not extend
the contract of employment is according to the Claimant illegal. On this basis, the Player
requested the payment of the salaries which should have been paid to him for the season
2021/2022.
15. The requests for relief of the Claimant were the following:
-
To request the Club to provide with the Protocol signed on 28 June 2021.
To condemn the Club to pay the amount of EUR 36,000 as the outstanding
remuneration for the 2020/2021 season.
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-
-
To condemn the Club to pay the amount of EUR 183,750 as compensation.
To condemn the Club to pay the amount of EUR 81,900 as damage
compensation (dommages et intérêts).
To apply 5% interest p.a. within 30 days following the notification of the decision.
To indicate that in the absence of payment within 30 days following the notification
of the decision, the case will be submitted to FIFA Disciplinary Committee in order
to allow the later to impose a sanction against the club.
Sporting sanctions to be applied on the Club.
b. Position of the Respondent
16. The Club replied to the Player’s claim indicating that the Player has no overdue payables
and has waived all enforcement lawsuits rights in the bilateral agreement dated 28 June
2021.
17. With regards to the extension of the contract, the Respondent indicated that it has not
used the extension option and consequently, the contract expired on 31 May 2021.
18. The requests for relief of the Respondent were the following:
-
To reject the claim;
to deduct the payments from the request of the Player; and
“to make a decision that the judicial costs and the attorneyship fees that the
Respondent is faced with shall be paid by the Claimant. If not, to award a minimum
amount of procedural cost in connection with the temporary amendment to the
Procedural Rules declared with the Circular 1720”.
c. Rejoinder of the Claimant
19. With regards to the outstanding remuneration the Claimant did not contest the
Protocol document and the reception of EUR 25,000 on 28 June 2021, however it
contested that such document was never provided to the Claimant. Moreover, the
Claimant indicated that not further payment was provided and therefore, the bilateral
agreement is null and void.
d. Final comments of the Respondent
20. The arguments of the Respondent remained unchanged.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
21. First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or the
Chamber) 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 13 July 2022 and submitted
for decision on 10 November 2022. Taking into account the wording of art. 34 of the
October 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.
22. 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 (October 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 French player
and a Turkish club.
23. Finally, 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 Player (October 2022 edition), and
considering that the present claim was lodged on 13 July 2022, the July 2022 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
24. 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
25. 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.
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i. Main legal discussion and considerations
26. The foregoing having been established, the Chamber moved to the substance of the
matter, and noted that the case at hand pertains to a claim for outstanding remuneration
and compensation for breach of contract lodged by the Player against the Club.
27. The Player claims that (i) the club failed to pay part of his outstanding remuneration for
the 2020/2021 season; and (ii) the employment contract should have been extended until
the end of the 2021/2022 football season, however, the club had unilaterally refused to
extend the contract which according to the Claimant, is illegal. Moreover, the Player
wanted to continue his employment relationship with the Club and he did not have any
opportunity to decide on this matter. Therefore, the Player requested the payment of the
residual value of the contract as compensation for breach of contract.
28. The club, on the other hand, alleges that (i) it complied with all its financial duties under
the employment contract; and (ii) such employment contract was not extended, hence
expired on 31 May 2021, therefore there is no room for a potential compensation.
29. In this context, the DRC acknowledged that its task was to determine the following:
a. Is the player entitled to any outstanding remuneration for the original 2020/2021
season (i.e., until 31 May 2021)?
b. Was the employment contract validly extended until 30 May 2022?
A. Is the player entitled to any outstanding remuneration for
the original 2020/2021 season (i.e., until 31 May 2021)?
30. The Chamber referred to the wording of the bilateral agreement, which established that:
“…have agreed that there is a total net receivable of 61.000 EURO for the 2020/2021 football
season within the scope of the Professional Football Player Contract with the start date of
13.08.2020.and end of 31.05.2021 The parties have agreed that 45,000 EURO will be paid in
return for the aforementioned 61.000 EURO. 25,000 EURO of the aforementioned 46,000 EURO
will be paid on the date of signature, and the remaining 21,000 EURO will be paid on
15.09.2021.
In this context, apart from the above-mentioned 46,000 EURO payment, the Player irrevocably
waives all claims and litigation rights related to a total net outstanding fee of 15.000 EUR that
was due and unpaid until the conclusion of this Protocol and that this amount is left to the
Club as compensation…”
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31. Based on the foregoing, the Chamber took note that the total amount due by the Club to
the Player for the 2020/2021 football season amounted to EUR 61,000. From that amount
the Chamber also noted that the Player waived EUR 15,000 of his salary, which
corresponded to the work already performed by the Claimant.
32. At this point, the Chamber wished to recall the decisions of the Football Tribunal and
jurisprudence of the Court of Arbitration for Sport (CAS) with regards to waivers. In this
respect, the DRC outlined more in particular the contents of the awards in cases CAS
2020/A/6727 as well as CAS 2016/A/4582, to which it adheres, as well as the general
principles of law according to which, in general, players (as employees) cannot waive their
right to outstanding remuneration for work already performed, for this represents a
situation where an employee has rendered services for free.
33. The foregoing considerations coupled with the teachings of CAS and Football Tribunal
jurisprudence, led the Chamber to conclude that the waiving of salary for work already
performed, in the case at hand, cannot be considered as validly made insofar as the player
received no benefit from doing so. Accordingly, the Chamber decided that the bilateral
Protocol is partially rendered null and void to establish that the reduction of EUR 15,000
cannot be waived and thus shall be awarded.
34. As to the remaining EUR 46,000 (61,000 EUR less 15,000) due from the Club to the Player,
the Chamber took note that the bilateral agreement also indicated that the Club paid the
amount of EUR 25,000.
35. In light of the above, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the
amounts which were outstanding under the contract, i.e., EUR 36,000 (EUR 15,000 EUR plus
EUR 21,000).
36. In addition, 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 amounts as from 15 December 2022 until the
date of effective payment.
B. Was the employment contract extended until 30 May 2022?
37. Subsequently, the DRC analysed whether the employment contract was validly extended
between the parties until the end of the 2021/2022 season (i.e., until 30 May 2022).
38. The Chamber observed that clauses 4 and 6.1. of the contract enabled the club to
unilaterally extend the contract for one additional season (i.e., until 30 May 2022).
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39. The Chamber also observed that on 30 August 2021, the Player signed a new contract with
the French club USL Dunkerque, three months after the end of the 2020/2021 season.
40. The Chamber determined that by signing a new contract he (tacitly) recognized the
contract’s term as being of one year only. Additionally, the Chamber noted that the
Claimant never put the club in default for at least one year after the contract had already
elapsed.
41. In light of the above, and in accordance with the principle of estoppel, the player is
prevented from acting as he generated the legitimate expectation on the Respondent that
he acquiesced to the contract’s term.
42. Consequently, the DRC decided that the Player’s position on this matter should be
rejected, meaning that non compensation is to be awarded to the Player.
ii. Art. 12bis of the Regulations
43. In continuation, the DRC 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.
44. To this end, the DRC confirmed that the player put the club in default of payment of EUR
21,000, which had fallen due for more than 30 days, and granted the club with 10 days to
cure such breach of contract.
45. The DRC 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 the club is a repeat offender, the DRC decided to impose a fine on the
Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations.
46. Furthermore, the DRC regarded a fine amounting to USD 5,000 as appropriate and hence
decided to impose said fine on the club.
47. In this connection, the DRC wished to highlight that a repeated offence will be considered
as an aggravating circumstance and lead to more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
48. 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
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concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
49. 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.
50. Therefore, bearing in mind the above, the Chamber 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.
51. 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.
52. 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. 24 par.
8 of the Regulations.
d. Costs
53. 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.
54. 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.
55. 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, Samuel Rodrigue Wouahi Yohou, is partially accepted.
2.
The Respondent, Tuzlaspor A.S., has to pay to the Claimant, the following amount:
-
EUR 36,000 as outstanding remuneration plus 5% interest p.a. as from 15 December
2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
The Respondent is ordered to pay a fine of USD 5,000 to FIFA within 30 days as from the
notification of this decision to the following bank account, with clear reference to the case
FPSD-6703:
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
5.
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.
6.
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.
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.
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8.
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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