FIFA - Resolución Aabid_08082024

REF. FPSD-14820 pg. 2

Decision of the Dispute Resolution Chamber passed on 8 August 2024

regarding an employment-related dispute concerning the player Rayane Aabid

COMPOSITION :

Clifford J. HENDEL (USA & France), Deputy Chairperson Roy VERMEER (The Netherlands), Member Calum BEATTIE (Scotland), Member

CLAIMANT:

Rayane Aabid, France Represented by Ersin Hamarat

RESPONDENT:

Atakas Hatayspor, TürkiyeREF. FPSD-14820 pg. 3

I. Facts of the case

1. The French player Rayane Aabid (hereinafter: the Player or the Claimant) and the Turkish club Atakas Hatayspor (hereinafter: the Club or the Respondent ) entered into an employment contract valid from 21 August 2023 to 30 June 2024 (hereinafter: the Contract).

2. Pursuant to clause 3, the Club undertook to pay to the Player , inter alia , the following

amounts:

• EUR 462,500 net as total remuneration for the 2023/2024 season, payable as

follows:

Due date Amount (EUR) 31.08.2023 38,500 15.09.2023 35,000 30.09.2023 38,500 15.10.2023 17,500 31.10.2023 38,500 15.11.2023 25,000 30.11.2023 38,500 31.12.2023 38,500 31.01.2024 38,500 29.02.2024 38,500 31.03.2024 38,500 30.04.2024 38,500

30.11.2023 38,500 31.12.2023 38,500 31.01.2024 38,500 29.02.2024 38,500 31.03.2024 38,500 30.04.2024 38,500 31.05.2024 38,500

• Fringe benefits for the duration of the contractual, as follows:

“a. A house will be provided by the Club. All utility expenses (electricity, telephone, water, etc.) will be paid by the Player.

b. A car during the period of his employment contract. Traffic fines, gasoline and any other expenses will be paid by the Player.

c. 4 Round trip economy class flight tickets to Player’s country will be provided by the Club”.

• “amounts determined under [the Contract] are only net amounts and the Club is liable to pay withholding taxes regarding these amounts”.REF. FPSD-14820 pg. 4

3. On 2 April 2024, the Player put the Club in default and demanded payment of EUR 145,500 net as the balance of his salaries for the period from December 2023 to March 2024. The Player gave the Club 15 days to remedy the situation.

4. On 5 April 2024, the Club replied to the Player’s notice and denied having any liability for the rent paid by the Player, who had decided to secure accommodation other than that offered to the whole team.

5. On 18 April 2024, the Player notified the Club of the termination of the Contract due to overdue payables (cf. art. 14bis of the Regulations on the Status and Transfer of Players – RSTP). He confirmed the receipt of only EUR 10,000 after his default notice.

6. The Player informed that he remained unemployed following the termination of the

Contract.

II. Proceedings before FIFA

RSTP). He confirmed the receipt of only EUR 10,000 after his default notice.

6. The Player informed that he remained unemployed following the termination of the

Contract.

II. Proceedings before FIFA

7. On 31 May 2024, the Player submitted the present claim to FIFA. A brief summary of the parties’ position is set out below.

a. Player’s claim

8. In his claim, the Player argued that the Club had failed to comply with its financial duties, giving cause to the termination of the Contract in accordance with art. 14bis of the RSTP.

9. As a result, the Player requested to be awarded the following amounts:

• EUR 174,000 net as outstanding salaries, to be calculated as follows:

o EUR 38,500 net as the balance of the salary for December 2023, plus 5% interest p.a. from 1 January 2024;

o EUR 30,000 net as the balance of the salary for January 2024, plus 5% interest p.a. from 1 February 2024;

o EUR 28,500 net as the salary for February 2024, plus 5% interest p.a. from 1 March 2024;

o EUR 38,500 net as the salary for March 2024, plus 5% interest p.a. from 1 April 2024; and

o EUR 38,500 net as the salary for April 2024, plus 5% interest p.a. from 18 April 2024.REF. FPSD-14820 pg. 5

• TRY 220,600 net as reimbursement of the “payments for rent” , plus 5% interest p.a. from 18 April 2024, to be calculated as follows:

o TRY 112,500 paid on 13 November 2023; o TRY 8,100 paid on 10 January 2024;

interest p.a. from 18 April 2024, to be calculated as follows:

o TRY 112,500 paid on 13 November 2023; o TRY 8,100 paid on 10 January 2024; o TRY 50,000 paid on 10 February 2024; and o TRY 50,000 paid on 10 March 2024.

• EUR 38,500 net as compensation for breach of contract, corresponding to the salary for May 2024, plus 5% interest p.a. from 18 April 2024.

b. Club’s reply

10. On 3 July 2024, the Club submitted its response to the Player’s claim and refuted his

position as follows:

• The Player received all of his dues and his claim for the salary for May 2024 was premature;

• The Player is not entitled to any compensation, or at least any amount should be mitigated; and

• Under the terms of the Contract, and alike for all other players in the squad, the Player would be entitled to a house provided by the Club , rather than an unlimited reimbursement. The Player has chosen to live elsewhere of his own free will and for no reason and should therefore be liable for any payments incurred.

11. In light of the above, the Club filed the following requests for relief, quoted verbatim:

“- Dismiss the case on the grounds that the player’s claims cannot be accepted in accordance with the contract signed between the parties,

• Provided that it does not mean acceptance, if the case will not be dismissed an equitable reduction in the calculation of the mitigated and additional compensation,

• Provided that it does not mean acceptance, if you decide to the contrary of the above situations, we request a decision to make an equitable reduction”.REF. FPSD-14820 pg. 6

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

situations, we request a decision to make an equitable reduction”.REF. FPSD-14820 pg. 6

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

12. First of a ll, the Dispute Resolution Chamber (hereinafter : the 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 31 May 2024 and submitted for decision on .

Taking into account the wording of art. 34 of the March 2023 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules ), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

13. Furthermore, the Chamber referred to art. 2 par. 1 of the Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players (June 2024 edition), 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 player and a Turkish club.

14. 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 Players ( June 2024 edition) and considering that the present claim was lodged on 31 May 2024 , the cited edition of said regulations (hereinafter: the Regulations ) is applicable to the matter at hand as to the substance.

b. Burden of proof

15. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of

substance.

b. Burden of proof

15. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 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 Chamber stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties, including without limitation the evidence generated by or within the Transfer Matching System (TMS).

c. Merits of the dispute

16. Having established the competence and the applicable regulations, the Chamber entered into the merits of the dispute. In this respect, the Chamber 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 it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for assessing the matter at hand.REF. FPSD-14820 pg. 7

1. Main legal discussion and considerations

17. The Chamber then proceeded to the substance of the matter and noted that it concerned a claim for breach of contract brought by the Player against the Club.

18. In particular, the DRC acknowledged that the Player terminated the Contract on 18 April 2024, claiming that he had just cause due to overdue payments amounting to more than two of his salaries ( i.e., from December 2023 to March 2024). Furthermore, the Player provided evidence that he had given the Club a reasonable period of time to remedy the breach (i.e., 15 days), but to no avail.

19. In this context, the DRC determined that the Club bore the burden of proving that it had in fact complied with the financial terms of the Contract.

20. Notwithstanding the argument that it had paid the Player in full, the Chamber observed that the Club had limited itself to providing an alleged financial balance of the payments, which

complied with the financial terms of the Contract.

20. Notwithstanding the argument that it had paid the Player in full, the Chamber observed that the Club had limited itself to providing an alleged financial balance of the payments, which appeared to be an internal (and unofficial) spreadsheet that had not even been translated into any of the official FIFA languages. As such, the DRC found that this evidence was of no probative value in accordance with art. 13 par. 1 and 3 of the Procedural Rules and should therefore be disregarded.

21. Consequently, the Chamber determined that the Club had failed to meet its burden of proof. In other words, it concluded that such a persistent and substantial breach of its contractual obligations justified the unilateral termination of the Contract in this case and that, in accordance with the consistent jurisprudence of the DRC, the Club should be held liable for breach of contract.

22. On the basis of the factual and contractual situation at hand, the DRC decided that the Player had just cause to terminate the Contract in accordance with art. 14bis of the Regulations and that the Club should be liable for the consequences thereof.

1. Consequences

23. The Chamber then turned attention to the question of the consequences of such unjustified breach of contract committed by the Club.

24. In doing so, the Chamber first determined that, in accordance with the general legal principle of pacta sunt servanda, the Club is liable to pay to the Player the salaries outstanding at the time of the termination, plus interest at the rate of 5% p.a. as from the respective due dates until the date of effective payment, as follows:

• EUR 38,500 net as the balance of the salary for December 2023, plus 5% interest from 1 January 2024;REF. FPSD-14820 pg. 8

• EUR 30,000 net as the balance of the salary for January 2024, plus 5% interest from 1

February 2024;

1 January 2024;REF. FPSD-14820 pg. 8

• EUR 30,000 net as the balance of the salary for January 2024, plus 5% interest from 1

February 2024;

• EUR 28,500 net as the salary for February 2024, plus 5% interest from 1 March 2024;

• EUR 38,500 net as the salary for March 2024, plus 5% interest from 1 April 2024; and

• EUR 38,500 net as the salary for April 2024, plus 5% interest from 18 April 2024.

25. In addition, the Chamber also noted that the Player claimed to be entitled to reimbursement of the amounts paid for rent. Nevertheless, the Chamber was not persuaded by the Player’s position in this respect. In particular, the DRC found it decisive that (i) the Contract only referred to the Player’s entitlement to a house, as opposed to a rent allowance; (ii) the Player did not explain why he had entered into a different rental agreement on his own; (iii) the Player did not submit any evidence to confirm that he had reached an agreement with the Club concerning the reimbursement of his expenses; (iv) in any event, the alleged rental contract submitted by the Player is inconsistent as it provides for a different monthly rent than the one actually paid; and (v) the payment receipts filed by the Player are partially untranslated.

26. Therefore, the DRC decided that this part of the Player’s claim should be dismissed.

27. Having established the above, the Chamber turned to the calculation of the amount of compensation payable to the Player by the Club in the case at stake. In doing so, the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the

Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

28. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

29. As a consequence, the Chamber determined that the amount of compensation payable by the Club to the Player had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision prov ides for aREF. FPSD-14820 pg. 9

non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

30. Bearing in mind the foregoing as well as the claim of the Player, the Chamber proceeded with the calculation of the monies payable under the terms of the Contract from the date of its unilateral termination until its end date. Consequently, the Chamber concluded that the amount of USD 38,500 net (i.e., the instalment due on 31 May 2024) serves as the basis for determining the amount of compensation due for breach of contract.

31. In continuation, the Chamber verified as to whether the Player had signed an employment contract with another Club during the relevant period of time, by means of which he would

for determining the amount of compensation due for breach of contract.

31. In continuation, the Chamber verified as to whether the Player had signed an employment contract with another Club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the Player’s gen eral obligation to mitigate his damages.

32. In this case, the Chamber found that the Player remained unemployed after the termination of the Contract and, therefore, no mitigation applied.

33. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which a player is entitled to an amount corresponding to three monthly salaries as additional compensation should the termination of the employment contract at s take be due to overdue payables and should there be mitigation. Since the latter was not the case, the DRC decided that the Player is not entitled to receive additional compensation.

34. Consequently, based on all the above considerations and the specificities of the present case, the Chamber decided that the Club should pay the Player the amount of USD 38,500 net, which was considered as a reasonable and justified amount of compensation for breach of contract in the present case.

35. Taking into account the Player’s request as well as the constant practice of the Chamber in this regard, the latter decided to award him interest on said compensation at the rate of 5% p.a. as from the date of the termination of the Contract (i.e., 18 April 2024) until the date of effective payment.

1. Compliance with monetary decisions

36. The Chamber then referred to art. 24 par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences

of effective payment.

1. Compliance with monetary decisions

36. The Chamber then referred to art. 24 par. 1 and 2 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.REF. FPSD-14820 pg. 10

37. 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. The overall maximum duration of the registration ban shall be of up to three entire and consecutive registration periods.

38. Therefore, bearing in mind the above, the DRC decided that the Club must pay the full amount due (including all applicable interest) to the Player within 45 days of notification of the decision, failing which, at the request of the Player , a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become immediately effective on the Club in accordance with art. 24 par. 2, 4, and 7 of the Regulations.

39. The Club shall make full payment (including all applicable interest) to the bank account provided by the Player in the Bank Account Registration Form, which is attached to the present decision.

40. 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. 24 par. 8 of the Regulations.

d. Costs

41. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which “Procedures are free of charge where at least one of the parties is a player, coach, football agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

“Procedures are free of charge where at least one of the parties is a player, coach, football agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

42. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

43. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties.REF. FPSD-14820 pg. 11

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Rayane Aabid, is partially accepted.

2. The Respondent, Atakas Hatayspor, must pay to the Claimant the following amount(s):

• EUR 38,500 net as outstanding remuneration plus 5% interest p.a. as from 1 January 2024 until the date of effective payment;

• EUR 30,000 net as outstanding remuneration plus 5% interest p.a. as from 1 February 2024 until the date of effective payment;

• EUR 28,500 net as outstanding remuneration plus 5% interest p.a. as from 1 March 2024 until the date of effective payment;

• EUR 38,500 net as outstanding remuneration plus 5% interest p.a. as from 1 April 2024 until the date of effective payment;

• EUR 38,500 net as outstanding remuneration plus 5% interest p.a. as from 18 April 2024 until the date of effective payment; and

• EUR 38,500 net as compensation for breach of contract without just cause plus 5% interest p.a. as from 18 April 2024 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

until the date of effective payment; and

• EUR 38,500 net as compensation for breach of contract without just cause plus 5% interest p.a. as from 18 April 2024 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. Full payment (including all applicable interest) shall be made to the bank account indicated in the enclosed Bank Account Registration Form.

5. Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment

(including all applicable interest) is not made within 45 days of notification of this decision, the following consequences shall apply:

1. The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid. The maximum duration of the ban shall be of up to three entire and consecutive registration periods.

2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in the event that full payment (including all applicable interest) is still not made by the end of the three entire and consecutive registration periods.

6. The consequences shall only be enforced at the request of the Claimant in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.REF. FPSD-14820 pg. 12

7. This decision is rendered without costs.

For the Football Tribunal:

Emilio García Silvero Chief Legal & Compliance OfficerREF. FPSD-14820 pg. 13

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 57 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

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 17 of the Procedural Rules Governing the Football Tribunal).

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