F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 19 May 2020

Decision of the Dispute Resolution Chamber judge

passed on 19 May 2020,

by Alexandra Gómez Bruinewoud, (Uruguay & The Netherlands)

Dispute Resolution Chamber (DRC) judge

on the claim presented by the player,

Henri Grégoire Saivet, France

represented by Mr Aydin Doganay

as Claimant

and the club,

Club Bursaspor Kulübü, Turkey

represented by Mr Selin Kirmikil

as Respondent

regarding an employment-related dispute

between the parties in connection with overdue payables

I. Facts of the case

1. On 24 August 2018, the French player Henri Grégoire Saivet (hereinafter: the Claimant or the player) and the Turkish club Bursapor Kulübü (hereinafter: the Respondent or the club) signed an employment contract (hereinafter: the contract) valid as from 16 August 2018 until 31 May 2019.

2. In accordance with the contract, the Claimant was entitled to the total amount of EUR 900,000, payable in 10 instalments of EUR 90,000 on the last day of each month as from August 2018 until May 2019 as well as a monthly accommodation allowance of EUR 800.

3. By correspondence dated 26 December 2019, the Claimant put the Respondent in default of payment EUR 90,800, corresponding to the salary and accommodation allowance of May 2019, setting a time limit of 10 days in order to remedy the default, however to no avail.

4. On 10 January 2020 the Claimant lodged a claim in front of FIFA, asking for the payment of overdue payables, in the amount of EUR 90,800, plus 5% interest p.a. as from the due dates.

5. In reply to the claim, the Respondent claims that there are no outstanding payments towards the player and submits copies of bank statements referring to amounts due until April 2019.

II. Considerations of the DRC judge

1. First of all, the DRC judge analysed whether she was competent to deal with the matter at hand. In this respect, she took note that the present matter was submitted to FIFA on 10 January 2020. Consequently, taking into account the wording of art. 21 of the 2019 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) the aforementioned edition is applicable to the matter at hand.

2. Subsequently, the DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition October 2019) she 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.

3. Furthermore, the DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, she confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players, and considering that the present claim was lodged on 10 January 2020, the January 2020 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. Her competence and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC judge emphasised that in the following considerations she will refer only to the facts, arguments and documentary evidence, which she considered pertinent for the assessment of the matter at hand.

5. Having said this, the DRC judge acknowledged that the Claimant and the Respondent signed an employment contract valid as from 16 August 2018 until 31 May 2019, as per which the Claimant was entitled to the remuneration detailed in point I.2 above.

6. The Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent has overdue payables towards him in the total amount of EUR 90,800, corresponding to the outstanding salary and accommodation allowance for May 2019.

7. In this context, the DRC judge took particular note of the fact that, on 26 December 2019, the Claimant put the Respondent in default of payment of the aforementioned amounts, setting a time limit of 10 days in order for the Respondent to remedy the default.

8. Consequently, the DRC judge concluded that the Claimant had duly proceeded in accordance with art. 12bis par. 3 of the Regulations, which stipulates that the creditor (player or club) must have put the debtor club in default in writing and have granted a deadline of at least ten days for the debtor club to comply with its financial obligation(s).

9. Subsequently, the DRC judge took into account that the Respondent, for its part, claims that there are no outstanding payments towards the player and submits copies of bank statements referring to amounts due until April 2019.

10. In this regard, the DRC judge, referring to art. 12 par. 3 of the Procedural Rules, as per which “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”, noted that the documentation provided by the club in support of the allegation of payment of the claimed amount refers to months previous to the one claimed. Thus, the DRC judge decided that such allegations of the club must be rejected.

11. On account of the aforementioned considerations, the DRC judge established that the Respondent failed to remit to the Claimant the total amount of EUR 90,800 corresponding to the outstanding salary and accommodation fee for May 2019, plus interest of 5% p.a. as from the due dates until the date of effective payment.

12. The DRC judge established that the Respondent had delayed the due payment of the player’s remuneration (EUR 90,800) for more than 30 days without a prima facie contractual basis.

13. Consequently, the DRC judge decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant the total amount of EUR 90,800.

14. In continuation, taking into account the consideration under number II./13. above, the DRC 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.

15. The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations she has competence to impose sanctions on the Respondent. In this context, the DRC highlighted that, on several occasions within the past 2 years, the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis.

16. Moreover, the DRC judge referred to art. 12bis par. 6 of the Regulations, which establishes that a repeated offence will be considered as an aggravating circumstance and lead to a more severe penalty.

17. Bearing in mind the above, the DRC judge decided to impose a proportionally more severe fine on the Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations. On account of the above and taking into consideration the amount due of EUR 90,800 of overdue payables, the DRC judge regarded a fine amounting to CHF 30,000 as appropriate and hence decided to impose said fine on the Respondent.

18. Furthermore, taking into account the consideration under number II./3. above, the DRC judge referred to par. 1 and 2 of art. 24bis 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.

19. In this regard, the DRC judge pointed out 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 and for the maximum duration of three entire and consecutive registration periods.

20. Therefore, bearing in mind the above, the DRC judge decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the 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 effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

21. Finally, the DRC 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. 24bis par. 3 of the Regulations.

22. The DRC judge concluded her deliberations in the present matter by establishing that the claim of the Claimant is accepted.

III. Decision of the DRC judge

1. The claim of the Claimant, Henri Grégoire Saiver, is accepted.

2. The Respondent, Bursaspor Kulübü, has to pay to the Claimant the amount of EUR 90,800 plus interest of 5% p.a. as follows:

a. on EUR 90,000 as from 1 June 2019 until the date of effective payment;

b. on EUR 800 as from 2 May 2019 until the date of effective payment.

3. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amount mentioned under point 2. above.

4. The Respondent shall provide evidence of payment of the due amount in accordance with point 2. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

5. In the event that the amount due plus interest in accordance with point 2. above is not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

6. The ban mentioned in point 5. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

7. In the event that the aforementioned sum plus interest is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

8. The Respondent is ordered to pay a fine in the amount of CHF 30,000. The fine is to be paid within 45 days of notification of the present decision to FIFA to the following bank account with reference to case nr. 20-00084/lsk:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the Dispute Resolution Chamber-. Where such decisions contain confidential information, 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 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note relating to the motivated decision (legal remedy):

According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport (CAS)

Avenue de Beaumont 2

CH-1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the DRC judge:

Emilio García Silvero

Chief Legal & Compliance Officer