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 10 December 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 10 December 2020,

regarding an employment-related dispute concerning the player Issiar Dia

COMPOSITION:

Geoff Thompson (England), Chairman

Angela Collins (Australia), member

Abu Nayeem Shohag (Bangladesh), member

CLAIMANT:

ISSIAR DIA, France-Senegal

Represented by Mr. Thomas Normand

RESPONDENT:

YENI MALATYASPOR, Turkey

Represented by Mr. Burak Çakir

I.

I. FACTS OF THE CASEFACTS OF THE CASE

1. On 21 May 2020, the Franco-Senegalese player, Issiar Dia (hereinafter: the player or the Claimant) and the Turkish club, Yeni Malatyaspor (hereinafter: the club or the Respondent) executed a termination agreement (hereinafter: termination agreement) according to which they agreed to terminate a formerly established employment relationship between them.

2. Pursuant to the termination agreement, the club undertook to pay to the player inter alia EUR 371,250, broken down as follow:

a. EUR 123,750 on 30 June 2020;

b. EUR 123,750 on 25 July 2020;

c. EUR 123,750 on 15 August 2020;

3. Last paragraph of clause 2 (a) of the termination agreement reads as follows: “If the Club doesn't pay one of the instalments within the prescribed above mentioned deadlines, for some reason that it is and without prior formal notice from the Player, the Club is indebted without delay of the total sum remaining due as principal increased by an interest at 10% (ten percent) per year from the date of eligibility of the instalment until the date of effective payment and with a supplementary fix penalty amounting to € 20,000 (i.e. twenty thousand EUR).”

4. On 1, 7 and 23 July 2020, the player put the club in default of payment referring to the termination agreement and asked that payments be performed “without delay”.

5. On 6 July 2020, the club responded to the first notice and informed that payment would be made in the next week.

II.

II. PROCEEDINGS BEFORE FIFA

6. On 15 October 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a.

a. The claim of The claim of the the ClaimantClaimant

7. The player lodged the claim at had claiming that the club had overdue payables towards him in the total amount of EUR 371,250, corresponding to the instalments agreed under the termination agreement.

8. The player furthermore required the payment of the penalty and interest under the termination agreement as well as attorney fees, as follows:

“a) The Claim is well-founded for non-fulfilment of the Mutual Termination and Financial Clearance;

b) MALATYASPOR must pay in favour of Mr Issiar DIA an amount of € 371.250,00 as outstanding remuneration regarding the Employment contract;

c) MALATYASPOR must pay to Mr Issiar DIA an amount of € 20.000,00 as fix penalty;

d) MALATYASPOR must pay to Mr DIA an amount of € 7.945,69 as interest at 10% since 30 June 2020, 25 July 2020 and 15 August 2020 (this amount will be necessary updated until the day of full payment to Mr Issiar DIA);

e) All amount claimed shall be considered as net”.

b.

b. Position of the Position of the RespondentRespondent

9. In its reply to the claim, the Respondent argued that the player never had a good performance while at the club, in spite of the fact that the latter always paid on time.

10. The club went on to state that it reached an agreement to terminate the contract with the player according to which it “agreed to compensate the player (…) due to the early termination of contract” by paying EUR 371,250. Accordingly, the club deems that a penalty clause of EUR 20,000 and 10% interest is “disproportionate and therefore not valid” and should be reduced.

III.

III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

a.

a. Competence and applicable legal frameworkCompetence and applicable legal framework

11. 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 presented to FIFA on 15 October 2020 and submitted for decision on 10 December 2020. Taking into account the wording of art. 21 of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

12. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition October 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 Franco-Senegalese player and a Turkish club.

13. Subsequently, 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 (edition October 2020), and considering that the present claim was lodged on 15 October 2020, said edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b.

b. Burden of proofBurden of proof

14. The Chamber 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. Likewise, the DRC stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties.

15. In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c.

c. Merits of the disputeMerits of the dispute

16. The competence of the DRC and the applicable regulations having been established, the DRC entered into the merits of the dispute. 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 DRC 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.

i. Main legal discussion and considerations

17. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that the parties do not dispute that the club undertook to pay the player EUR 371,250 as per the termination agreement.

18. Nonetheless, the DRC noted that the Respondent has objected to the application of 10% interest as well as the penalty fee.

19. Turning to the former, the DRC referred to its own jurisprudence and well-established practice and confirmed that the amount of 10% per annum as interest cannot be considered as excessive or disproportionate, and decided to uphold the argumentation of the Claimant in this respect.

20. In continuation, the DRC addressed the issue of the penalty clause of EUR 20,000, which it found also proportionate and not excessive, as it represented only 5.39% of the principal amount due. Accordingly, the Chamber also referred to the jurisprudence of the DRC, which has consistently affirmed that clauses such as the one at stake shall be enforced.

21. Bearing in mind the foregoing, the DRC considered that the circumstances raised by the Respondent cannot be considered a valid reason for non-payment of the monies claimed by the Claimant, in other words, the reasons brought forward by the Respondent in its defence do not exempt the Respondent from its obligation to fulfil its contractual obligations towards the Claimant. The DRC furthermore highlighted that both the interest rate and the contractual penalty were freely negotiated by and between the parties and are fair and proportionate.

22. Consequently, the DRC decided to reject the argumentation put forward by the Respondent in its defence.

23. On account of the aforementioned considerations, the DRC established that the Respondent failed to remit the player’s remuneration, in the total amounts of EUR 371,250, corresponding to the instalments agreed under the termination agreement.

24. Consequently, the DRC 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 371,250 as outstanding remuneration as well as EUR 20,000 as contractual penalty.

25. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC decided that the Respondent must pay to the Claimant interest of 10% p.a. on each of the relevant payments as of the day following the day on which the relevant payments fell due, until the date of effective payment. The DRC clarified however that in accordance with its own well-established practice, no interest shall accrue on the contractual penalty.

ii. Compliance with monetary decisions

26. Finally, taking into account the applicable Regulations, the Chamber 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.

27. In this regard, the DRC 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 and for the maximum duration of three entire and consecutive registration periods.

28. Therefore, bearing in mind the above, the DRC 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 communicates the relevant bank details to the club, provided that the decision is final and binding, 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.

29. The DRC recalled that the above-mentioned bans 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.

d.

d. CostsCosts

30. The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

31. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

32. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties.

IV.

IV. DECISIONDECISION OF THE OF THE DISPUTE RESOLUTION CHAMBERDISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, ISSIAR DIA, is partially accepted.

2. The Respondent, YENI MALATYASPOR, has to pay to the Claimant the following amounts:

- EUR 123,750 as outstanding remuneration plus 10% interest p.a. as from 31 June 2020 until the date of effective payment;

- EUR 123,750 as outstanding remuneration plus 10% interest p.a. as from 26 July 2020 until the date of effective payment;

- EUR 123,750 as outstanding remuneration plus 10% interest p.a. as from 16 August 2020 until the date of effective payment.

- EUR 20,000 as contractual penalty.

3. Any further claims of the Claimant are rejected.

4. 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.

5. 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).

6. 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.

7. The decision is rendered without costs.

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.

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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