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 14 May 2020

Decision of the

Dispute Resolution Chamber

passed on 14 May 2020,

in the following composition:

Clifford J. Hendel (USA & France), Chairman

Alexandra Gómez Bruinewoud (Uruguay & Netherlands), member

Stefano La Porta (Italy), member

on the claim lodged by the player,

Paul-George Ntep de Mabida, Cameroon

represented by Mr Rhadamès Killy & Mr Alvyn Gobardhan

as Claimant

against the club,

Kayserispor Kulübü Derneği, Turkey,

represented by Mr Mert Can Ocel, Mr Mehmet Ayhan Copuroglu & Mr Batu Mosturoglu

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 7 January 2017, the Cameroonian player, Mr Paul-George Ntep de Mabida (hereinafter: the player or the Claimant), and the German club, VfL Wolfsburg, concluded an employment contract, valid as from the date of signature until 30 June 2021.

2. On 26 August 2019, the Claimant and the Turkish club, Kayserispor Kulübü Derneği (hereinafter: the club or the Respondent) signed an employment contract on the basis of a loan (hereinafter: the contract), valid as from the date signature until the end of the football season 2019/2020.

3. According to the contract, the Claimant was entitled to a total remuneration of EUR 880,000, broken down as follows:

 EUR 150,000 “is to be paid to the Player by the Club as an advance payment on 26.08.2019. This payment is made in consideration of the whole service period of the Player during 2019/2020 football season and it shall be a progressed amount at the end of the football season”;

 EUR 730,000 “is to be paid to the Player by the Club as the monthly salary in 10 (ten) equal installments between the period August 2019 – May 2020. The monthly salaries are to be paid the last day of the relevant months”.

4. Pursuant to art. 5 of the contract, the Claimant agreed to abide by the following rules:

“a. The Player commits himself to perform in the best manner for the success of the Football Team including without limitation the local and international competitions.

b. The Player is obliged to abide by the written or oral orders / instructions of the Authorized Person literally, without any alibi and reasons.

c. The Player is obliged to attend the training sessions and training camps, to be determined by the Club (including place and dates) and he shall strictly abide by the related instructions of the Authorized Person, he shall participate in every competition both friendly and official games and/or he shall be ready to attend. The Player is obliged to attend scheduled programs, to be determined by the Club.

d. The Player is obliged to take care of his health and physical fitness in maximum meaning and he shall attend the medical examination, to be set by the Club and Administrators at the related medical institutions and staff determined by the Club as well, he is obliged to follow medical instructions of the related health authorities as described above. Although the Player has a right to determine the medical institutions and medical staff to be examined, at his own cost, risk and responsibility, following the prior written consent of the Club.

e. Annual leave period of the Player and using conditions of those leavings are to be determined by the Club in exclusive manner. However, aforementioned annual leaving period is to be used during the holiday break of the professional football team.

f. The Player may not travel abroad without approval of the Club including his annual leaving.”

5. Art. 7. B. of the contract set out the possibility for the Claimant to terminate the contract in the event of a payment default by the Respondent, as follows:

“In case the club fails into a default for any payment for more than thirty (30) days, the player shall notify the club in writing and provide ten (10) days to the club for payment. If the club does not pay the unpaid amount then the player bas the option to terminate the contract unilaterally with just cause. In this case the player shall be entitled to take legal actions before CAS competent bodies in order to claim his remuneration/compensation etc”.

6. By means of a letter dated 7 November 2019, the Claimant granted the Respondent 10 days to pay the salary due on 30 September 2019.

7. On 22 November 2019, the Claimant unilaterally terminated the contract, invoking art. 7. B. of the contract.

8. On 9 December 2019, the Claimant lodged a claim against the Respondent in front of FIFA.

9. In his claim, the Claimant deemed to have terminated the contract with just cause pursuant to art. 7. B. of the contract.

10. In view thereof, the Claimant requested the total amount of EUR 657,000, broken down as follows:

 EUR 73,000 as outstanding remuneration for the salary due on 30 September 2019;

 EUR 584,000 as compensation for breach of contract;

11. In addition, the Claimant requested the payment of interest on the aforementioned amount and asked that his legal costs be borne by the Respondent.

12. In its reply, the Respondent rejected the Claimant’s claim.

13. First, the Respondent deemed that the Claimant had breached art. 5 lit. a., b., c., d. and f. of the contract. In this regard, the Respondent argued that after a game on 31 October 2019, the Claimant claimed to be injured “and left the city without consulting the club medical staff and management”. Moreover, the Respondent stated that it “made numerous attempts on recalling Mr. Ntep de Madiba to Kayseri in order to provide the player with treatment and physiotherapy. However Mr. Ntep de Madiba never replied to the efforts shown by the club”.

14. As a consequence of the above, the Respondent mentioned that it had decided to impose a fine on the Claimant on 21 November 2019, in the amount of EUR 72,000. In addition, the Respondent considered that the Claimant had failed to “meet with the fitness level required by the nature of Professional football”.

15. Furthermore, the Respondent stressed that the Claimant “failed to perform all contractual duties after 31.11.2019 due to his absence” and therefore “the club is not obliged to pay the player”.

16. Finally, the Respondent stated that the Claimant and the German club, VFL Wolfsburg, had decided to mutually terminate their employment contract. According to the Respondent, this is a “sign of player’s incapableness for performing as a Professional football player and being regarded as a liability by the parent club Wolfsburg”. In this regard, the Respondent stressed that “as the Player has terminated the Professional Football Player’s Contract with VFL Wolfsburg on 10.02.2020 with mutual consent, the player is not entitled to make any further claims arising from the aforementioned Professional Football Player’s Contract”.

17. After being requested, the Claimant informed FIFA of his contractual situation. On 7 February 2020, the Claimant and VfL Wolfsburg signed a termination agreement, according to which the employment contract was terminated “by mutual consent with effect on February 7th, 2020”. According to art. 4 of the termination agreement, VfL Wolfsburg undertook to pay to the Claimant “an amount of € 2,300,000,-- gross, due and payable on February 28th, 2020”.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the DRC or the Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was first submitted to FIFA on 9 December 2019. 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 (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 (March 2020 edition), it is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension between a Cameroonian player and a Turkish club.

3. Furthermore, the DRC analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (March 2020 edition) and considering that the present matter was submitted to FIFA on 9 December 2019, the October 2019 edition of said Regulations is applicable to the present matter as to the substance.

4. With the above having been established, the Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the Chamber emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand. In particular, the Chamber recalled that, in accordance with art. 6 par. 3 of Annex 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the FIFA Transfer Matching System (hereinafter: TMS).

5. In this respect, the Chamber firstly acknowledged that it was undisputed that the Claimant and the Respondent had signed an employment contract on the basis of a loan on 26 August 2019, valid as from the date of signature until the end of the 2019/2020 football season. In continuation, the Chamber noted that it was also undisputed that the Claimant was entitled, inter alia, to remuneration as set out at point I./3. above.

6. What is more, the Chamber further noted that on 22 November 2019, the Claimant unilaterally terminated the employment contract with the Respondent, alleging that the salary due on 30 September 2019 had remained outstanding, despite the default notice sent to the Respondent on 7 November 2019.

7. Summarising the parties’ respective positions in this dispute, the Chamber noted that the Claimant, on the one hand, claimed that he had terminated the contract with just cause pursuant to art. 7. B. of the contract, as the Respondent had failed to pay him the salary due on 30 September 2019, whilst on the other hand, the Respondent affirmed that the Claimant had breached art. 5 lit. a., b., c., d. and f. of the contract. In this context, the Chamber also noted that the Respondent declared to have imposed a fine on the Claimant in the amount of EUR 72,000 and considered not being obliged to pay the Claimant’s salaries in light of the aforementioned breaches.

8. In view of the foregoing, the Chamber established that the main issue to be analysed in the present case is whether the Claimant in fact had a just cause to unilaterally and prematurely terminate the contract with the Respondent on 22 November 2019 or not. Subsequently, the Chamber shall establish the financial and/or sporting consequences to be borne by the party found to be in breach of contract.

9. In this respect, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure.

10. Furthermore, the Chamber deemed it appropriate to recall 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.

11. At this stage, the Chamber deemed it appropriate to recall that the Claimant considered to have terminated the contract with just cause, pursuant to art. 7. B. of the contract, which reads as follows: “(i)n case the club fails into a default for any payment for more than thirty (30) days, the player shall notify the club in writing and provide ten (10) days to the club for payment. If the club does not pay the unpaid amount then the player bas the option to terminate the contract unilaterally with just cause. In this case the player shall be entitled to take legal actions before CAS competent bodies in order to claim his remuneration/compensation etc.”

12. In this context, the Chamber thoroughly analysed the position of the Respondent. First, the Chamber observed the Respondent’s argument that the Claimant had breached art. 5 lit. a., b., c., d. and f. of the contract by claiming to be injured after a game and leaving “the city without consulting the club medical staff and management”. In this respect, the Chamber further observed the Respondent’s position that it “made numerous attempts on recalling Mr. Ntep de Madiba to Kayseri in order to provide the player with treatment and physiotherapy. However Mr. Ntep de Madiba never replied to the efforts shown by the club”. Accordingly, the members of the DRC further noted that the Respondent decided to impose a fine on the Claimant on 21 November 2019, in the amount of EUR 72,000.

13. Irrespective of the foregoing consideration, the Chamber wished to point out that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to set off outstanding financial obligations towards players.

14. With this being said, the Chamber observed the timing and the amount of the fine imposed on the Claimant. In this respect, the Chamber pointed out that the Claimant put the Respondent in default on 7 November 2019, claiming EUR 73,000, whilst the Respondent imposed a fine on the Claimant in the amount of EUR 72,000, i.e. almost the same amount as requested by the Claimant, and that said fine was imposed less than 15 days after the default letter, i.e. on 21 November 2019.

15. Furthermore, the Chamber was eager to emphasise that the Respondent never contested that the salary of September 2019 was due to the Claimant and that it had submitted no corroborating evidence which demonstrated that the Claimant had breached any contractual provision.

16. In continuation, the Chamber noted that the Respondent deemed that the Claimant failed to “meet with the fitness level required by the nature of Professional football”. In this regard, the Chamber referred to its jurisprudence in accordance with which a decrease in, or deduction from, payments to a player by a club on the basis of a player’s alleged low performance cannot be accepted, due to the unilateral and arbitrary character of the club’s decision.

17. In view of all the above and based on the information and documentation on file, the members of the Chamber agreed that the arguments put forward by the Respondent to justify the non-payment of remuneration and the deduction from the salaries of the Claimant cannot be accepted as valid.

18. With this being established, the Chamber recalled that the Claimant had put the Respondent in default on 7 November 2019, granting 10 days for the payment of the salary due on 30 September 2019, i.e. more than 30 days after the due date, and that he had terminated the contract following the absence of any payment within the stated deadline.

19. Therefore, the DRC highlighted that, at the moment the Claimant terminated the contract, he had fully complied with the criteria set out in article 7.B of the contract. In these circumstances and taking into account the default notice sent to the Respondent, the Chamber considered that the Claimant could have legitimately lost faith in the ability and will of the Respondent to fulfill its contractual obligation in due course.

20. In this regard, the Chamber deemed it appropriate to point out that from the documentation and information on file, it appears that at the moment of termination of the contract, i.e. 22 November 2019, the monthly salaries of September and October remained unpaid. This is irrespective of the fact that the Claimant terminated the contract for the non-payment of the monthly salary of September 2019 only.

21. Consequently, and considering the situation of the player at the time of termination, the Chamber was of the opinion that the objective circumstances at the time did provide the Claimant with just cause to terminate the employment contract.

22. In light of all of the aforementioned considerations, the DRC came to the conclusion that the Claimant had terminated the contract on 22 November 2019 with just cause, pursuant to art. 7. B. of the contract.

23. Having established that the Respondent is to be held liable for the early termination of the employment contract, the Chamber focused its attention on the consequence of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive from the Respondent an amount of money as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant employment contract.

24. First of all, the Chamber reverted to the Claimant’s claim in which he requested outstanding remuneration in the amount of EUR 73,000 and EUR 584,000 as compensation for breach of contract. This being said, the Chamber noted that the Claimant did work for almost the entire month of November 2019 and therefore, an amount equal to his salary for November should be considered as part of the outstanding remuneration due to him, instead of compensation.

25. Consequently, taking into account that the contract was terminated on 22 November 2019, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay the Claimant the amount of EUR 219,000 as outstanding remuneration, corresponding to the salaries of September, October and November 2019.

26. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the total amount of outstanding remuneration, i.e. EUR 219,000. However, taking into consideration that the Claimant failed to specify as from when he requested interest, the Chamber decided that the Respondent must pay interest as of the date of claim, i.e. 9 December 2019, until the date of effective payment.

27. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract 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 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 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 the contract did not contain such a provision.

29. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant 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 provides for a 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 Claimant, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the contract until its term, i.e. the end of the football season 2019/2020. According to the information available on the TMS, the 2019/2020 season in Turkey started on 20 June 2019 and ended on 31 May 2020.

31. Consequently, the Chamber concluded that the amount of EUR 438,000 (i.e. salaries of December 2019 to May 2020) serve as basis for the determination of the amount of compensation for breach of contract.

32. In continuation, the Chamber verified as to whether the Claimant had signed an agreement with another club during the relevant period of time, by means of which he would have been able to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new agreement shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

33. In this context, the Chamber acknowledged that the Claimant and VfL Wolfsburg signed a termination agreement on 7 February 2020, thereby mutually terminating the employment contract valid until 30 June 2021 with immediate effect and agreeing upon the payment of EUR 2,300,000 to the Claimant.

34. However, the DRC deemed that it remained unclear whether the Claimant had in fact returned to VfL Wolfsburg following the termination of the contract with the Respondent. This being said and taking into account the lack of documentation on file as well as the specific circumstances of the present matter, a majority of the members of the Chamber were of the opinion that the conclusion of the termination agreement had to be observed as a decisive indicator that the Claimant had in fact returned to VfL Wolfsburg following the termination of the contract on 22 November 2019.

35. As such and based on a majority decision among the members, the DRC came to the conclusion that the amount as provided in the termination agreement should be taken into account to calculate the mitigated compensation, and this is irrespective of the fact that the termination agreement (considered as a “new contract” for purposes of art. 17 of the Regulations) was signed some 2.5 months after the termination of the employment contract with the Respondent.

36. As a result, the majority of the members of the Chamber were of the opinion that it could be established that the Claimant had received per month a compensation of EUR 135,295 (EUR 2,300,000 / 17 months). For the period between February and May 2020, this corresponds to a total mitigation of EUR 676,470, whereas the residual value of the contract with the Respondent amounted to EUR 438,000. As a result, the majority of the members of the Chamber deemed that the value of the termination agreement signed by the Claimant and Vfl Wolfsburg in the relevant period was higher than the residual value of the contract, as determined in point II./31. above.

37. Consequently, the majority of the members of the DRC decided that the Claimant had been able to mitigate his damages in full and therefore, he shall not be entitled to compensation for breach of contract.

38. Having established the above, taking into account art. 17 par.1 (ii), the DRC recalled that it had found that the player had unilaterally terminated the contract due to overdue payables and took note that the player had been able to mitigate his damages. Consequently, the Chamber decided that the Claimant should be entitled to an additional compensation in the amount of EUR 219,000 corresponding to the equivalent of 3 monthly salaries.

39. In addition, taking into account the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR 219,000, as of the date of claim, i.e. 9 December 2019, until the date of effective payment.

40. Furthermore, 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.

41. 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.

42. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amount 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.

43. Finally, the DRC recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amount, in accordance with art. 24bis par. 3 of the Regulations.

44. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further request filed by the Claimant is rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Paul-George Ntep de Madiba, is partially accepted.

2. The Respondent, Kayserispor Kulübü Derneği, has to pay to the Claimant outstanding remuneration in the amount of EUR 219,000, plus interest at the rate of 5% p.a. as from 9 December 2019 until the date of effective payment.

3. The Respondent has to pay to the Claimant compensation in the amount of EUR 219,000 plus interest at the rate of 5% p.a. as from 9 December 2019 until the date of effective payment.

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

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 amounts mentioned under points 2 and 3 above.

6. The Respondent shall provide evidence of payment of the due amounts in accordance with points 2 and 3 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 points 2 and 3 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.

*****

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 relating 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.

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