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 23 April 2020

Decision of the

Dispute Resolution Chamber

passed on 23 April 2020,

in the following composition:

Geoff Thompson (England), Chairman

José Luis Andrade (Portugal), member

Stijn Boeykens (Belgium), member

on the claim presented by the player,

Allano Brendon de Souza Lima, Brazil

represented by Mr Rafael Queiroz Botelho

as Claimant

against the club,

Bursaspor Kulubu, Turkey

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 30 July 2018, the Brazil player, Allano Brendon de Souza Lima (hereinafter: the player or the Claimant), and the Turkish club, Bursaspor Kulubu (hereinafter: the club or the Respondent), signed an employment contract (hereinafter: the contract), valid as from the date of signature until 31 May 2019.

2. In accordance with the contract, the Claimant was entitled to a total remuneration of EUR 300,000 payable in 10 monthly salaries of EUR 30,000 payable between August 2018 and May 2019.

3. By correspondence dated 11 December 2019, the Claimant put the Respondent in default of payment of EUR 120,000 corresponding to outstanding based on the employment contract and setting a time limit of 10 days in order to remedy the default, to no avail.

4. On 26 December 2019, the Claimant lodged a claim against the Respondent before FIFA, requesting outstanding remuneration in the total amount of EUR 120,000 plus 5% interest as from the due dates until the date of effective payment. He further requested procedural costs at the expense of the Respondent.

5. In his claim, the Claimant held that for the total duration of the contract, he should have been entitled to receive EUR 300,000 but received EUR 180,000, leaving EUR 120,000 as outstanding.

6. In its reply, the Respondent held that it paid EUR 180,000 to the player as follows:

 EUR 10,000 on 30 July 2018;

 EUR 20,000 on 3 October 2018;

 EUR 30,000 on 6 December 2018;

 EUR 30,000 on 21 December 2018;

 EUR 30,000 on 7 February 2019;

 EUR 30,000 on 21 March 2019;

 EUR 30,000 on 5 April 2019.

7. The club explained that it was attempting to provide proofs of payment of other amounts allegedly paid to the player.

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 case at hand. In this respect, it took note that the present matter was submitted to FIFA on 26 December 2019. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2019; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the DRC referred to art. 3 par. 1 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 (edition 2020) he is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Brazilian player and a Turkish club.

3. Furthermore, the DRC analysed which 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 par. 2 of the Regulations on the Status and Transfer of Players (edition 2020), and considering that the present claim was lodged on 26 December 2019, the 2019 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC and the applicable regulations having been established, the DRC entered into the substance of the matter. In this respect, the DRC 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 he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand..

5. In this respect, the Chamber observed that the parties had signed an employment contract on 30 July 2018, in accordance with which the player was entitled to receive, inter alia, the total remuneration of EUR 300,000 payable in ten instalments of EUR 30,000 from August 2018 to May 2019.

6. In continuation, the Chamber noted that the Claimant alleged that the Respondent failed to pay the alleged outstanding amount of EUR 120,000. Consequently, the Claimant asked to be awarded the payment of the total amount of EUR 120,000 plus 5% interest as of the due date as well as an additional interest of 5 % on the total amount plus interest.

7. In this context, the Chamber took particular note of the fact that, on 11 December 2019, the Claimant put the Respondent in default of the payment of the aforementioned amounts, setting a 10 days’ time limit in order to remedy its default.

8. Consequently, the DRC 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. Having said that, the Chamber took note of the reply of the Respondent, which asserted that it had paid EUR 180,000 to the Claimant and that it was looking for further proof of additional payments.

10. In view of the above, the Chamber emphasized that in accordance with the legal principle of the burden of proof, which is a basic principle in every legal system, a party deriving a right from an asserted fact has the obligation to prove the relevant fact (cf. art. 12 par. 3 of the Procedural Rules). In this regard, the Chamber duly took note that the Respondent provided proof of payments of EUR 180,000. The Chamber further noted that the Respondent did not provide any additional proof of payments on top of those ones.

11. In this regard, the Chamber found it relevant to underline that the proof of payments provided by the Respondent corresponded to the amount acknowledged as received by the Claimant in his claim, amounts which were not requested by the Claimant, but did not provide any further evidence as to the requested amounts.

12. The Chamber highlighted that in accordance with the contract, the Claimant was entitled to the total amount of EUR 300,000 and that the Respondent provided evidence of the payment of EUR 180,000, leaving EUR 120,000 as unsubstantiated.

13. In view of the above, and based on the documentation currently at its disposal, the Chamber unanimously came to the conclusion that the Claimant had substantiated his claim pertaining to overdue payables with sufficient documentary evidence, and that the Respondent had failed to provide conclusive evidence that all the due amounts under the contract had been paid to the Claimant.

14. On account of the aforementioned considerations, the DRC established that the Respondent failed to remit the Claimant’s remuneration in the total amount of EUR 120,000 corresponding to monthly salaries of February to May 2019 included.

15. In addition, the Chamber established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

16. Consequently, the DRC decided that, in accordance with the legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant overdue payables in the total amount of EUR 120,000.

17. In addition, taking into consideration the claim lodged by the Claimant, as well as the constant practice of the DRC, the Chamber decided to award the Claimant interest at the rate of 5% p.a. until the date of effective payment on each payment the day following the due date provided in the contract, and noted that in the absence of any due dates for the payments, each salary would therefore become due on the last day of the relevant month.

18. In continuation, taking into account the consideration under number II./15. above, 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.

19. The DRC established that in virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. In this context, the DRC duly noted that the Respondent has previously been found by the DRC to have neglected its contractual obligations towards players on multiple occasions in the recent past, as well as by the Single Judge of the Players’ Status Committee, neglecting its obligation toward clubs on multiple occasions, the DRC decided to impose a fine on the Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations..

20. Moreover, the DRC 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 several penalty.

21. Bearing in mind that the Respondent did not reply to the claim of the Claimant as well as the considerations under number II./19. above, the DRC decided to impose a more severe fine on the Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations. Furthermore, taking into consideration the amount due of EUR 120,000, the DRC regarded a fine amounting to CHF 52,500 as appropriate and hence decided to impose said fine on the Respondent.

22. 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

23. Furthermore, taking into account the consideration under number II./9. above, the DRC 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.

24. In this regard, the DRC 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.

25. Therefore, bearing in mind the above, the DRC 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.

26. Finally, the DRC 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.

27. The DRC concluded its deliberation by rejecting any further claim of the Claimant.

II. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Allano Brendon de Souza Lima, is partially accepted.

2. The Respondent, Bursaspor Kulubu, has to pay to the Claimant overdue payables in the amount of EUR 120,000 plus 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. as of 1 March 2019 on the amount of EUR 30,000;

b. 5% p.a. as of 1 April 2019 on the amount of EUR 30,000;

c. 5% p.a. as of 1 May 2019 on the amount of EUR 30,000;

d. 5% p.a. as of 1 June 2019 on the amount of EUR 30,000.

3. Any further claim lodged by the Claimant is rejected.

4. The Respondent is ordered to pay a fine in the amount of CHF 52,500. 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. 20-00011/iml:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

5. 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.

6. 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).

7. 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).

8. The ban mentioned in point 7. above will be lifted immediately and prior to its complete serving, once the due amount is paid.

9. 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.

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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

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer