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 21 February 2020

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 21 February 2020,

in the following composition:

Clifford Hendel (USA), Deputy Chairman

Pavel Pivovarov (Russia), member

Tomislav Kasalo (Croatia), member

on the claim presented by the player,

Ryan Mendes Da Graca, France

represented by Mr Guy Reiss

as Claimant

and the club,

Kayserispor Kulübü Dernegi, Turkey

as Respondent

regarding an employment-related dispute

between the parties

1. Facts of the case

1. On 31 January 2017, the French / Cape Verdean player, Ryan Mendes Da Graca (hereinafter: the player or the Claimant), and the Turkish club, Kayserispor Kulübü Dernegi (hereinafter: the club or the Respondent) (hereinafter jointly referred to as the parties), signed an employment contract (hereinafter: the contract), valid as from the date of signature until the end of the season 2019/2020.

2. Article 6.1. of the contract provided the following “financial benefits in favour of the player” :

“For 2016/2017 Football Season : 450.000.00-Euro (…)

- 100.000,00-Euro (…) of the aforementioned amount is to be paid to the player by the club as an advance payment on 01.02.2017. This payment is made in consideration of the whole service period of the player during 2016/2017 football season and it shall be a progressed amount at the end of the football season.

Guarantee payment:

- 300.000,00-Euro (…) of the aforementioned amount is to be paid to the player by the club as the monthly salary in 5 (five) equal installments between the period of January 2017 – May 2017. The monthly guarantee salaries are to be paid the last day of the relevant months.

- 50.000,00-Euro (…) of the aforementioned amount is to be paid on 26.04.2017 to the player as a cheque”.

3. Moreover, art. 6.3. of the contract read as follows:

“(…)

And if [the club] transfers the player to another club during his contract, [the club] will pay %10 (…) from the transfer amount to the player”.

4. For its part, art. 7 of the contract provided a “buy out payment clause” which stipulated that “during the 2nd transfer window of 2017/2018 football season announced by TFF, the player has a right to terminate the contract unilaterally, provided that the player and/or another football club makes the “buy out payment” of 1.500.000,00-Euro (…) to the club”. In addition, said article further stipulated that “the buy out payment shall be paid by the player and/or another club to the club in 30 (…) days following the date of termination of this contract”.

5. On 19 June 2018, Sharjah FC (hereinafter: the new club), a club from United Arab Emirates, made an offer of EUR 1,500,000 to the club for the permanent transfer of the player.

6. On 2 July 2018, the player and the new club signed an employment contract, valid as from the date of signature until 30 June 2021.

7. Moreover, in accordance with the information available in the Transfer Matching System (TMS), the player was successfully registered with the new club on 2 July 2018, with the following specifications:

- No transfer agreement was signed between the club and the new club. The player submitted his termination letter via TMS on 1 July 2018.

- The player’s registration with the new club implies that the Turkish FA delivered the player’s ITC.

- The club provided a signed letter dated 23 July 2018 attesting to the absence of TPO.

8. With the above in mind, the employment contract concluded by the plyer with the new club provided in its art. 17 b. the following specification : “[the new club] undertakes to pay on behalf of the player the total amount of 1,500,000 Euros (…) due to his former club, [the club], a professional football club affiliated to the Turkish Football Federation, in accordance to the contract the player signed with the Turkish Club. Such amount cannot be deductible by the Club from any of the player’s wages or bonuses.”

9. By a default letter dated 27 March 2019, the player asked the club to pay the amount of EUR 150,000 pursuant to art. 6.3 of the contract.

10. On 15 July 2019, the player lodged a claim in front of FIFA requesting the following:

i. EUR 150,000 corresponding to 10% of the transfer fee paid by the new club to the club, pursuant to art. 6.3. of the contract (“And if Kayserispor transfers the Player to another Club during his contract, Kayserispor will pay 10% (ten per cent) from the transfer amount to the Player”).

ii. EUR 90,000 corresponding to:

- EUR 30,000 as half of the player’s monthly salary for the month of April 2017;

- EUR 60,000 as the player’s monthly salary for the month of May 2017.

11. In addition, the player also asked that his legal costs in the amount of EUR 10,000 be borne by the club.

12. The player claimed that his transfer to the new club was done during the term of the contract and that a transfer fee of EUR 1,500,000 was paid by the new club to the club. Accordingly, the player should be entitled to 10% of said amount, i.e. EUR 150,000, pursuant to art. 6.3. of the contract.

13. In this respect, the player sustained that he duly put the club in default with his correspondence of 27 March 2019, however to no avail.

14. Moreover, the player claimed that the club did not pay his salary for half of April and full of May 2017, both were consequently still outstanding.

15. In reply to the claim, the club argued firstly that the club and the new club never concluded a transfer agreement and the player terminated the contract without just cause.

16. In continuation, the club argued that it had paid EUR 450,000 for the season 2016/2017 and EUR 600,000 for the season 2017/2018 to the player, as well as other additional payments.

17. As a consequence, in total, the club deemed that it paid the total amount of EUR 1,112,451.46 to the player, said payments corresponding to the submitted copies of the various payment slips it provided in support of its allegations.

18. Therefore, on account of the above, the club held that it paid all contractual remuneration due to the player and, in this respect, it requested the player’s claim to be rejected and the costs of proceedings to be imposed on the player.

19. Finally, in accordance with the player’s employment contract concluded with the new club, the total value of said contract amounted to USD 5,650,000.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 15 July 2019. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (2018 edition; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2020), 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 / Cape Verdean player and a Turkish club.

3. Notwithstanding the above, bearing in mind that the employment contract at the basis of the present matter was concluded on 31 January 2017 with a duration until the end of the season 2019/2020 and that the Claimant lodged his claim against the Respondent in front of FIFA on 15 July 2019, the members of the DRC considered that they should examine if the present claim, or any part of it, is barred by the statute of limitations.

4. Indeed, the members of the Chamber referred to art. 25 par. 5 of the Regulations on the Status and Transfer of Players (edition 2020), which, in completion to the general procedural terms outlined in the Procedural Rules, clearly establishes that the Dispute Resolution Chamber shall not hear any dispute if more than two years have elapsed since the event giving rise to the dispute arose and that the application of this time limit shall be examined ex officio in each individual case.

5. In view of the above, the DRC deemed it fundamental to underline that in order to determine whether the Chamber could hear the present matter, or any part of it, it should, first and foremost, establish which is “the event giving rise to the dispute”, i.e. which is the starting point of the time period of two years as set out under art. 25 par. 5 of the Regulations.

6. In this respect, the members of the Chamber acknowledged that, according to the documents presented by the Claimant in support of his claim, the parties were bound by an employment contract signed on 31 January 2017 valid until the end of the season 2019/2020. The DRC duly noted that the Claimant was entitled to receive, as a monthly salary for the 2016/2017 season, the amount of EUR 60,000 payable the last day of the relevant months. In addition, the Chamber also took note that, in accordance with art. 6.3. of said contract, the player would be entitled to 10% of the transfer amount paid by another club to the club in case such transfer took place during the contract’s validity period between the parties. Consequently, the Chamber recalled the player’s claim by means of which he requested the outstanding partial and full salaries for April and May 2017, as well as the aforementioned 10% of the alleged transfer fee allegedly paid by the new club to the club during the term of the contract and amounting to EUR 1,500,000. In other words, the Claimant’s claim is based on the alleged non-payment of the aforementioned salaries and on the transfer fee paid allegedly triggering the aforementioned 10% payment obligation, i.e. EUR 150,000. In this sense, the Chamber concluded that both events must be considered the events giving rise to the present dispute.

7. Having said that, while recalling that the present claim was submitted to FIFA on 15 July 2019, the Chamber took into account that the outstanding amounts related to the Claimant’s salaries were payable, respectively, on 30 April 2017 and 31 May 2017, all of which thus had fallen due more than two years prior to the date on which the Claimant lodged his claim in front of FIFA.

8. As a consequence, referring to art. 25 par. 5 of the Regulations on the Status and Transfer of Players, the DRC concluded that the time limit of two years for the Claimant to claim outstanding remuneration related to both of the aforementioned salaries had elapsed at the time he lodged his claim in front of FIFA.

9. Therefore, the Chamber decided that the claim of the Claimant is partially barred by the statute of limitations and, consequently, inadmissible as to the Claimant’s request of being awarded EUR 30,000 and EUR 60,000 as outstanding salaries.

10. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter corresponding to part of the claim it considered as admissible. 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 (edition 2020), and considering that the present claim was lodged on 15 July 2019, the June 2019 version of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

11. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, the members of the Chamber started by acknowledging that, according to the Claimant, he signed a contract with the Respondent and the parties contractually agreed that in case of transfer during the term of the contract, the club will have inter alia to pay 10% of the transfer compensation to the player according to art. 6.3. of the contract. In addition, the DRC also recalled that the Claimant sustained that a transfer compensation was paid to the club by the new club and therefore, he requested 10% of EUR 1,500,000.

12. The Dispute Resolution Chamber further took due note of the fact that the Respondent, for its part, had explained that it had never concluded a transfer agreement with the new club and that the player terminated the contract without just cause. Consequently, it held that no money had to be paid to the Claimant in accordance with his aforementioned reasoning.

13. In view of this dissent between the parties in respect of the basic question as to whether or not a transfer agreement had been concluded between the Respondent and the new club and a transfer fee had been paid by the latter, the members of the Chamber referred to 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 respective burden of proof. The application of the said principle in the present matter led the members of the Dispute Resolution Chamber to conclude that it was up to the player to prove that the amount of EUR 1,500,000 had been duly paid to the club.

14. Having stated the above, the Dispute Resolution Chamber first observed that the contract also provided a buy-out clause as established in art. 7. of the contract, in accordance with which the player can terminate the contract if he or any clubs pays the amount of EUR 1,500,000 to the club.

15. Having said that, the Chamber recalled that in accordance with art. 6 par. 3 of Annexe 3 of the aforementioned Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the said Regulations, any documentation or evidence generated or contained in the TMS. In this respect, the DRC noted that, in accordance with the information available in TMS, it appeared that the club uploaded a termination letter of the player where he declared that “I will pay my penalty of 1.500.000.Euros through [the new club]”.

16. Furthermore, the DRC also recalled that in the player’s new contract, the new club declared that it will pay the amount of EUR 1,500,000 to the former club, i.e. art. 17 b. of said new contract.

17. Considering the above, the DRC concluded that the new contract stipulated that the amount would be paid to the club by the new club. In this respect, it appeared to the members of the DRC that that it would not have been difficult for the player to ask the new club to provide the relevant payment receipt.

18. Consequently, the DRC deemed that in principle, the player would be entitled to receive 10% of the transfer fee, however in this particular case, the player did not provide evidence that this amount had been paid. In addition the DRC also underlined and recalled that the payment of the buy-out clause can be assimilated to a transfer fee as confirmed by FIFA and CAS jurisprudence, however again, in the present proceedings, the player did not provide evidence that this amount has been paid.

19. With the above in mind and notwithstanding the content of the Chamber’s analysis and reasoning in the present case, the members of the Chamber concluded that the player failed without a doubt to provide any evidence confirming that the amount of EUR 1,500,000 was actually paid to the club, either by him or by the new club.

20. As a consequence, the Chamber had to conclude that the documents and evidence presented by the Claimant did not prove that the amount of EUR 1,500,000 had been duly paid to the club, and, consequently, that the player failed to fulfil the burden of proof relying on him in accordance with 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 respective burden of proof.

21. Therefore, the claim for the amount of EUR 150,000 is thus rejected due to the lack of evidence.

22. All the above led the Dispute Resolution Chamber to conclude that the claim of the player has to be rejected.

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Ryan Mendes Da Graca, is rejected.

*****

Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. 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 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). 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

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer