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 28 February 2020

Decision of the

Dispute Resolution Chamber (DRC) Judge

passed on 28 February 2020,

by

John Newman (USA)

on the claim presented by the player,

Bokila Loteteka, The Netherlands,

represented by Mr Ercan Sevdimbas

as Claimant

against the club,

Akhisar Belediyespor, Turkey

represented by Messrs Levent Polat & Ergin Akçay,

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. The Dutch player, Bokila Loteteka (hereinafter: the player), and the Turkish club, Akhisar Belediyespor (hereinafter: the club), concluded an employment contract (hereinafter: the contract) with the club, valid as from 30 January 2017 until 31 May 2019.

2. According to clause 3 of the contract, the player is entitled to receive for season 2016/2017:

(a) EUR 54,000 advance payment, of which EUR 30,000 is payable on 30 January 2017 and EUR 24,000 by cheque on 28 February 2017;

(b) EUR 126,000 fixed remuneration payable in monthly arrears on the 25th day of each month from February to May 2017 (i.e. four instalments of EUR 31,500).

3. According to clause 3 of the contract, the player is entitled to receive for season 2017/2018:

(a) EUR 108,000 advance payment, of which EUR 40,000 is payable on 15 August 2017 and two cheques of EUR 34,000 payables on 30 September and 31 October 2017;

(b) EUR 252,000 fixed remuneration payable in monthly arrears on the 25th day of each month from August 2017 until May 2018 (i.e. ten instalments of EUR 25,200).

4. According to clause 3 of the contract, the player is entitled to receive for season 2018/2019

(a) EUR 120,000 advance payment, of which EUR 40,000 is payable on 15 August 2018 and two cheques of EUR 40,000 payables on 30 September and 31 October 2018;

(b) EUR 280,000 fixed remuneration payable in monthly arrears on the 25th day of each month from August 2018 until May 2019 (i.e. ten instalments of EUR 28,000).

5. On 3 June 2019, the player put the club in default in the amount of EUR 60,500, corresponding to the unpaid half salary of April 2019 and full salary of May 2019, as well as EUR 18,500 of bonuses, and gave 7 days for the club to comply. The player did not provide a copy of the bonus schedule in his correspondence.

6. On 20 June 2019, the player lodge a claim in front of FIFA and requested the award of following amounts:

(a) EUR 42,500 plus 5% interest p.a. as from the due dates, corresponding to the unpaid half salary of April 2019 and full salary of May 2019;

(b) EUR 18,500 in bonuses for “the matches played in Super League and National Cup”.

(c) Sanctions to be imposed against the club.

7. In his claim, theplayer considered that the club failed to pay him one and a half salaries as well as bonuses that were apparently due to him. In this respect, the player provided with abstracts of What’s App conversations from the club’s team chat.

8. In its reply to the claim, the club argued that the salaries of April and May 2019 have been delayed due to the financial difficulties encountered following its relegation. In this regard, the club pointed out that it owed EUR 42,000 only.

9. Then, the club indicated that the player’s claim for bonuses in the amount of EUR 18,500 is groundless. In fact, the club pointed out that there are no clauses in the player’s contract for the claimed bonuses and that the What’s App messages submitted by the player are not conclusive evidence that any bonus amount was due.

10. In his replica, the player amended his claim and requested the award of EUR 42,000 corresponding to half of the salary of April 2019 and full salary of May 2019 + 5% interest p.a. as of the due dates.

11. In its duplica, club pointed out that the player itself admitted in its replica that no bonus were actually owed to him, and requested for this to be taken into account by the Chamber.

II. Considerations of the Dispute Resolution Chamber (DRC) Judge

1. First of all, the Dispute Resolution Chamber Judge (hereinafter: the DRC Judge) analysed whether he was competent to deal with the case at hand. In this respect, the DRC Judge took note that the present matter was first submitted to FIFA on 20 June 2019 and that the matter was submitted to the DRC Judge for decision on 28 February 2020. Consequently, the 2019 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.

2. Subsequently, the DRC Judge 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 (January 2020 edition), he is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension between a Dutch player and a Turkish club.

3. Furthermore, 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 (January 2020 edition) and considering that the present matter was submitted to FIFA on 20 June 2019, the June 2019 edition of said Regulations is applicable to the present matter as to the substance.

4. The competence of the DRC Judge and the applicable regulations having been established, the DRC Judge entered into the substance of the matter. In doing so, he started to acknowledge the facts of the case as well as the documents contained in the file. However, the DRC Judge 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. Having said this, the DRC Judge proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well as the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

6. In this respect, the DRC Judge acknowledged that it was undisputed by the parties that the Claimant and the Respondent had signed an employment contract valid as from 30 January 2017 until 31 May 2019.

7. The DRC Judge recalled that in accordance with the contract, the player was entitled inter alia to a monthly remuneration of EUR 28,000 for season 2018/2019.

8. In continuation, the DRC Judge duly observed that the player had put the club in default on 3 June 2019, requesting the payment of half of the salary of April 2019 and the salary of May 2019 as well as bonuses, for a total amount of EUR 60,500.

9. The DRC Judge then reviewed the claim of the player, who requested the total amount of EUR 60,500, consisting in (1) EUR 42,500 plus 5% interest p.a. as from the due dates, corresponding to the unpaid half salary of April 2019 and full salary of May 2019; and (2) EUR 18,500 in bonuses for “the matches played in Super League and National Cup”. In addition, the DRC Judge took note of the player’s request as to sporting sanctions to be imposed on the club.

10. In particular, the DRC Judge observed that the player held that the club failed to comply with its financial obligations and despite his default notice dated 3 June 2018, the amounts claimed are still outstanding.

11. The DRC Judge noted that in its reply, the club rejected the claim for bonuses in view of the absence of contractual agreement between the parties in this respect, and that the club had put forward financial difficulties to justify the delay of payment of the outstanding remuneration of the player, which according to its calculation only amounted to EUR 42,000.

12. What is more, the DRC Judge observed that the player later amended his claim, limiting it to EUR 42,000, corresponding to the half salary of April 2019 and the salary of May 2019, plus 5% interest p.a. as from the respective due dates.

13. In view of the foregoing, the DRC Judge noted that it was undisputed between the parties that EUR 42,000 were due to the player.

14. In this regard, the DRC Judge remarked that the club had explained that the non-payment of the player’s outstanding remuneration was due to financial difficulties.

15. Recalling the extensive jurisprudence of the Dispute Resolution Chamber in this respect, the DRC Judge emphasised that the financial hardship of a club cannot be considered as a valid reason to justify the non-compliance of its financial obligations.

16. In view of the above, the DRC Judge concluded that, in accordance with the general legal principle of pacta sunt servanda, the club must fulfil its contractual obligations towards the player and is to be held liable to pay the player the amount of EUR 42,000.

17. Furthermore, considering the player’s claim for interest and also taking into account the Dispute Resolution Chamber’s longstanding jurisprudence, the DRC Judge ruled that the club must pay interest as follows:

(a) 5% interest p.a. on the amount of EUR 14,000 as from 26 April 2019 until the date of effective payment;

(b) 5% interest p.a. on the amount of EUR 28,000 as from 26 May 2019 until the date of effective payment.

18. The DRC Judge concluded his deliberations in the present matter by establishing that any further claim lodged by the player is rejected.

*****

III. Decision of the DRC Judge

1. The claim of the Claimant, Bokila Loteteka, is partially accepted.

2. The Respondent, Akhisar Belediyespor, has to pay to the Claimant the amount of EUR 42,000, plus interest as follows:

a. 5% interest p.a. on the amount of EUR 14,000 as from 26 April 2019 until the date of effective payment;

b. 5% interest p.a. on the amount of EUR 28,000 as from 26 May 2019 until the date of effective payment.

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

4. 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 plus interest mentioned under point 2. above.

5. The Respondent shall provide evidence of payment of the due amount plus interest 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).

6. In the event that the amount due plus interest in accordance with point 2. above are 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).

7. The ban mentioned in point 6. above will be lifted immediately and prior to its complete serving, once the due amount plus interest are paid.

8. In the event that the aforementioned amount plus interest are 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.

9. In the event that the amounts due in accordance with points 2. and 3. above are 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.

*****

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 art. 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.

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 DRC Judge:

Emilio García Silvero

Chief Legal & Compliance Officer