F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 29 July 2020
Decision of the
DRC Judge
passed on 29 July 2020,
regarding an employment-related dispute concerning the player Emmanuel Agyeman
Badu
COMPOSITION:
Johan van Gaalen (South Africa), DRC Judge
CLAIMANT:
EMMANUEL AGYEMAN BADU, Ghana
Represented by Messrs. Kandal & Demiral
RESPONDENT:
BURSASPOR KULÜBÜ, Turkey
I. FACTS OF THE CASE
1) The Ghanaian player Emmanuel Agyeman Badu (hereinafter: the Claimant or the player) and
the Turkish club Bursaspor Kulübü (hereinafter: the Respondent or the club) signed an undated
employment contract valid as from 3 August 2017 until 31 May 2018.
2) According to art. 3 of the contract, for the 2017-2018 season, the player was entitled to a
total remuneration of EUR 1,000,000, EUR 300,000 of which within 10 days as from the
signature of the contract and EUR 700,000 paid in 10 equal monthly instalments.
3) Furthermore, art. 3 of the contract also stipulates that ”at the end of a season; If the collective
team bonus amount remain under 75.000 EUR net after calculations that the player entitled
receive during season, the Bursaspor will add the difference up to complete the amount for EUR
100,000”. […] All amounts stated in this contract are determined as NET”.
II. PROCEEDINGS BEFORE FIFA
A. Position of the Claimant
4) On 3 February 2020, the player lodged a claim against the club in front of FIFA requesting
“outstanding credits EUR 46,335 from the club with interest p.a. minimum %5 from the date of
sending default notice to respondent club on 21.01.2020”.
5) In his claim, the player pointed out that, pursuant to clause 3 of the contract, the club
committed itself to pay a bonus in the amount of EUR 100,000.
6) In this context, the Claimant highlighted that he had only received from the Respondent the
payment of “[TL 230,250] equivalent to [EUR 53,665]”. Therefore, as per the Claimant, “the club
has a debt as guarantee bonus for the amount of [EUR 46,335]”. According to the player, “the
club did not pay and did not replied our default notice”.
7) In this respect, on 21 January 2020, the Claimant put the Respondent in default requesting
the payment of EUR 46,335 and granting it a 10-day deadline to remedy the default.
Furthermore, the Claimant underlined that “30 days has also passed after due dates of the
above bonus remunerations of the player due to the fact that contract has expired on 31st May
2018”.
B. Position of the Respondent
8) In its reply, the Respondent held that it does not owe any amounts to the player as it allegedly
made several payments to his lawyer at the time Mr Oguzhan Bayran Kandal, who is currently
executing his credits in Turkey. Furthermore, the club claims to have made several payments
to the player and thus no further amounts are due. In this respect, the club provided several
bank statements mentioning the player, related to unspecified payments in the course of
2017 and 2018, and others mentioning Mr Oguzhan Bayran Kandal or Mr Yalcin Gudul.
9) Thus, the Respondent requested the DRC to dismiss the claim and to “make a decision that
the judicial costs and the attorneyship fees that the Claimant is face with shall paid by the
Claimant”.
III. CONSIDERATIONS OF THE DRC JUDGE
A. Competence
10) In relation to the competence, the Dispute Resolution Chamber (DRC) Judge (hereinafter also
referred to as the DRC judge) analysed whether he was competent to deal with the case at
hand. In this respect, he took note that the present matter was submitted to FIFA on 11 March
2020 and decided on 3 July 2020. Consequently, the June 2020 edition of the Rules governing
the procedures of the Players’ Status Committee and the Dispute Resolution Chamber
hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the
Procedural Rules).
11) 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 in conjunction with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players, he is competent to deal with employmentrelated
disputes with an international dimension between a player and a club.
B. Admissibility
12) Notwithstanding the above, the DRC judge acknowledged that the club contested the
competence of FIFA arguing that in accordance with the contract the National Dispute
Resolution Chamber (NDRC) of Romania was the competent tribunal to enter into the
substance of this matter.
13) In this context, the DRC judge first deemed it essential to verify whether the contract indeed
contained a clear and exclusive arbitration clause in favour of one specific deciding body
under the auspices of the Football Federation of Turkmenistan. In this respect, the DRC judge
referred to the wording of the contract, which stipulates that: “The parties will make, in goodfaith,
all efforts to amicably resolve any dispute, controversy, or misunderstanding resulting
from or in connection with the present agreement. Conflicts related to the conclusion, execution,
amendment, suspension or discontinuation of the present agreement will be resolved by the
jurisdictional bodies within the RFF or PPL or by the materially and regionally competent courts
of law when, the above mentioned jurisdictional bodies do not have the authority to resolve the
occurring dispute. Objectively, any disputes resulting from the development of the present
agreement will be resolved by the National Dispute Resolution Chamber within the RFF and
such chamber's decisions may be appealed against before the Board of Appeals within the RFF
/FIFA/CAS, exactly in this order”.
14) Having analysed the aforementioned clause, the DRC judge concluded that its wording is by
no means clear and appears to mention two different deciding bodies, not specifying however the framework of their competence. Thus, such clause of the contract cannot be
considered as a valid arbitration clause, stipulating the clear and exclusive jurisdiction of one
specific deciding body of the Romanian NDRC.
15) As a result of the aforementioned, the DRC judge concluded that the Respondent’s objection
towards the competence of FIFA to deal with the present matter has to be rejected, without
the need of any further analysis of the NDRC Regulations, as the first pre-requisite – that of
a clear and exclusive arbitration clause contractually agreed between the parties – is not met.
This decision is also in line with previous decisions of the DRC related to the Romanian NDRC.
Thus, the DRC judge is competent to consider the present matter as to the substance, on the
basis of art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and
Transfer of Players and the claim is admissible.
C. Applicable legal framework
16) The DRC judge analysed which edition of the 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, and considering that the
present claim was lodged on 3 February 2020 and decided on 29 July 2020, the January 2020
edition of said regulations is applicable to the matter at hand as to the substance.
17) His competence and the applicable regulations having been established, the DRC judge
entered into the substance of the matter. The DRC Judge continued by acknowledging the
above-mentioned facts as well as the documentation contained in the file in relation to the
substance of the matter. However, he 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.
D. Burden of proof
18) The DRC judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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.
E. Merits of the dispute
I. Main legal discussion
19) The DRC judge wished to recall in this respect the main elements of the dispute.
20) In this respect, he noted that while the player claims that the club has outstanding payments
towards him in the total amount of EUR 46,335, corresponding to part of a contractual bonus,
the club deems that such amount was fully paid and it has no debt towards the player.
21) In view of the foregoing, the DRC judge noted that the main issue to be solved in the present
case is whether the club indeed paid the player the claimed amounts based on their
employment contract.
II. Considerations
22) Having said this, the DRC judge noted that the Respondent does not dispute that the bonus
stipulated in art. 3 of the contract was in fact due to the Claimant, however claims that it was
already fully paid, either to the player directly or to third parties allegedly authorized to
receive such amount on his behalf.
23) At this point, the DRC judge deemed it appropriate to remind the parties of the content of
art. 12 par. 3 of the Procedural Rules, according to which “any party claiming a right on the
basis of an alleged fact shall carry the burden of proof”. In the present case, this means that
the Respondent bore the burden of proving that the full bonus was in fact paid and that any
third parties having received part of such payment were in fact authorized by the original
creditor, i.e. the player, to collect them on his behalf.
24) Having said that, the DRC judge noted that the club claims to have made several payments
to the player and in support of its allegations it provided copies of several bank statements
mentioning the player, related to unspecified payments in the course of 2017 and 2018, and
others mentioning Mr Oguzhan Bayran Kandal or Mr Yalcin Gudul. The DRC judge noted that
none of these documents is signed by the player and that according to the power of attorney
on file, the player is represented by Mr Ibrahim Kandal and Mr Yasin Demiral. No document
demonstrating that the player authorized Mr Oguzhan Bayran Kandal or Mr Yalcin Gudul to
receive any monies on his behalf were provided by the club. Furthermore, the DRC judge
noted that it is not possible to allocate the random payments allegedly made during the years
2017 and 2018 and establish that the claimed bonus was in fact paid.
25) Thus, the DRC judge concluded that the Respondent was not able to discharge its burden of
proof and should therefore, in accordance with the general legal principle of pacta sunt
servanda, be held liable to pay the Claimant the amount of EUR 46,335 as requested.
26) The DRC judge also determined that interest at the rate of 5% p.a. should apply on the
aforementioned amount as from 21 January 2020 until the date of effective payment, in
accordance with the player’s request. In this respect, the DRC judge noted that no specific
due date for the payment of the aforementioned bonus was provided for in the contract, but
considering that the contract expired on 31 May 2018, the player’s request can be accepted.
III. Conclusion
27) As a result of the aforementioned, the DRC judge decided that the player’s claim is accepted
and that the club should pay the player the total amount of EUR 46,335 as outstanding
remuneration plus 5% interest p.a. as from 21 January 2020.
IV. Legal Consequences
28) Subsequently, taking into account the previous considerations, 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.
29) 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.
30) Therefore, bearing in mind the above, the DRC judge decided that, in the event that the club
does not pay the amounts due to the player within 45 days as from the moment in which the
player, following the notification of the present decision, communicates the relevant bank
details to the club, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.
***
IV.DECISION OF THE DRC JUDGE
1) The claim of the Claimant, Emmanuel Agyeman Badu, is accepted.
2) The Respondent, Bursaspor Kulübü, has to pay to the Claimant, the following amount:
- EUR 46,335 as outstanding remuneration plus 5% interest p.a. as from 21 January 2020
until the date of effective payment.
3) The Claimant is directed to immediately and directly inform the Respondent of the relevant
bank account to which the Respondent must pay the due amount.
4) The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA
languages (English, French, German, Spanish).
5) In the event that the amount due, plus interest as established 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 following consequences shall arise:
1. 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. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 (cf. CAS Directives at Legal.FIFA.com).
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 20 of the Procedural Rules).
CONTACT INFORMATION:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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