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,
Kamal Issah, Ghana,
represented by Mr Yusif Chibsah
as Claimant
against the club,
Eskisehirspor Kulubu Dernegi, Turkey
as Respondent
regarding an employment-related dispute between the parties
I. Facts of the case
1. On 17 January 2019, the Ghanaian player, Kamal Issah (hereinafter: the Claimant),
and the Turkish club, Eskisehirspor Kulübü, (hereinafter: the Respondent) concluded
an employment contract valid as from the date of signature until 31 May 2020).
2. According to the employment contract, the financial terms were the following:
“The below stated advance payment, salary payments and payments per game shall
be made to the football player for the 2018-2019 football season, according to the
payment calendar shown below.
The TOTAL AMOUNT OF NET 150,000 EURO will be paid for the 2018-
2019 FOOTBALL SEASON in the following manner:
A. 30,000 EURO will be paid to […] the football player on the date when
the contract is signed 29/01/2019.
B. EUR 20,000 will be paid as down payment on 23.02.2019.
C. The remaining 100,000 EURO will be paid in the following manner:
1. 20,000 EURO on 28.02.2019
2. 20,000 EURO on 30.03.2019
3. 20,000 EURO on 30.04.2019
4. 20,000 EURO on 30.05.2019
5. 20,000 EURO on 30.06.2019
The player will be paid at amount of total of 7.500 euros for house rental, vehicle
rental and flight ticket for 2018/2019 season.
The TOTAL AMOUNT OF NET 250,000 EURO will be paid for the 2019-
2020 FOOTBALL SEASON in the following manner.
A. The advance payment of 50,000 EURO will be paid on 15/08/2019 to the
[…] football player.
B. The remaining 200,000 EURO will be paid in the following manner:
1. 20,000 EURO on 30.08.2019
2. 20,000 EURO on 30.09.2019
3. 20,000 EURO on 30.10.2019
4. 20,000 EURO on 30.11.2019
5. 20,000 EURO on 30.12.2019
6. 20,000 EURO on 30.01.2020
7. 20,000 EURO on 28.02.2020
8. 20,000 EURO on 30.03.2020
9. 20,000 EURO on 30.04.2020
10. 20,000 EURO on 30.05.2020
The player will be paid at amount of total of 15,000 euros for house rental, vehicle
rental and flight ticket for 2019/2020 at the latest.
IF THE CLUB IS ENTITLED TO PLAY IN THE SUPER LEAGUE DURING THE
2018/2019 FOOTBALL SEASON:
The TOTAL AMOUNT OF NET 400,000 EURO will be paid for the 2019-
2020 FOOTBALL SEASON in the following manner:
A. The advance payment of 100,000 EURO will be paid on 30/07/2019 to
the […] football player.
B. The remaining 300,000 EURO will be paid in the following manner:
1. 30,000 EURO on 30.08.2019
2. 30,000 EURO on 30.09.2019
3. 30,000 EURO on 30.10.2019
4. 30,000 EURO on 30.11.2019
5. 30,000 EURO on 30.12.2019
6. 30,000 EURO on 30.01.2020
7. 30,000 EURO on 28.02.2020
8. 30,000 EURO on 30.03.2020
9. 30,000 EURO on 30.04.2020
10. 30,000 EURO on 30.05.2020
BONUS PAYMENT:
In the event that the club is entitled to move to a higher league during the
2019-2020 football season an extra payment in the amount of 50,000 EURO
will be made to the football player.
FRINGE BENEFITS:
The player will be paid at amount of total of 15.000 euros for house rental, vehicle
rental and flight ticket for 2019/2020 season
1. In case non-payment of salaries, benefits and any other monetary obligations
of the Club for more than 60 days, the Player shall warn the Club in written
form (e.g. by fax) and give 15 days for the payment. The Player will be entitles
to terminate the employment contract with just cause if the Club fails to fulfil
its financial obligations within 15 days upon receipt of the written notice.
[…]”
3. On 26 April 2018, the Claimant put the Respondent in default of payment of the total
amount of EUR 60,000, corresponding to the monthly salaries of February and March
2019 (2 x EUR 20,000), which were outstanding, and the salary of April 2019 (EUR
20,000), which was to fall due soon, granting the Respondent 10 days to remedy the
default.
4. On 14 May 2019, the Claimant sent the Respondent another default notice, for the
amount of EUR 60,000, corresponding to the aforementioned salaries, granting the
club 5 days to remedy the default.
5. On 19 July 2019, the Claimant sent the Respondent a third default notice,
acknowledging the payment of EUR 21,000, but claiming in addition to the amount
which still remained outstanding the salaries for May and June 2019, which fell due
in the meantime. Thus, the Claimant granted the Respondent a deadline of 5 days to
pay the total amount of EUR 79,000.
6. On 11 September 2019, the player sent the club a fourth default notice,
acknowledging the payment of another EUR 8,000, but claiming in addition to the
amount which still remained outstanding the salary for August 2019 and the advance
payment which fell due on 30 August 2019. The Claimant granted the Respondent a
deadline of 10 days to pay the total amount of EUR 141,000.
7. On 25 September 2019, the Claimant lodged a claim against the Respondent before
FIFA claiming the payment of the amount of EUR 141,000 corresponding to
outstanding remuneration from March to August 2019. On 9 December 2019, the
Dispute Resolution Chamber decided to award the player the amount of EUR 141,000
plus interest as from the due dates, to be paid by the Respondent.
8. In the meantime, on 26 November 2019, the Claimant had sent the Respondent a fifth
default notice, claiming an additional amount of EUR 60,000, corresponding to
outstanding salaries for September and October 2019, and the one for November
2019, which was to fall due soon, granting the club 7 days to remedy the default.
9. The Respondent replied on an unspecified date to the previous default notice,
alleging financial difficulties of the country and the club, and undertaking to pay him
the amount of EUR 20,000 on 20 December 2019.
10. A final default notice was sent by the Claimant on 8 January 2020, for the amount of
EUR 80,000, corresponding to the salaries for September to December 2019, granting
the Respondent 5 days to remedy the default.
11. On 16 January 2020, the Claimant unilaterally terminated the contract.
12. Subsequently, on 17 January 2020, the Claimant concluded an employment contract
with the Turkish club Istanbulspor valid as from the date of signature until 31 May
2021.
13. On 20 January 2020, the Claimant lodged a claim against the Respondent in front of
FIFA for outstanding remuneration and compensation for breach of contract,
requesting the following amounts:
“Outstanding remuneration
- EUR 90,000 as outstanding salaries + 5% interest as from the relevant
payment dates until the date of effective payment, specified as follows:
o EUR 20,000 + 5% interest p.a. as from 1 October 2019;
o EUR 20,000 + 5% interest p.a. as from 31 October 2019;
o EUR 20,000 + 5% interest p.a. as from 1 December 2019;
o EUR 20,000 + 5% interest p.a. as from 31 December 2019;
o EUR 10,000 + 5% interest p.a. as from 16 January 2020;
Compensation for breach of contract:
- EUR 90,000 as the amount due as compensation for breach of contract + 5%
interest as from 16 January 2020 until the date of effective payment.”
14. The Claimant deemed that he terminated the contract with just cause due to the
Respondent’s non-compliance with the contractual obligations. Moreover, the
Claimant deemed that Respondent only paid an amount of EUR 20,000 on 20
December 2019 in regards to the aforementioned decision.
15. Moreover, the Claimant declared that, after the termination of the contract, he
signed an employment contract with the Turkish club Istanbulspor, valid as from 17
January 2020 until 31 May 2021, according to which he was entitled to Turkish Lira
(TL) 400,000 (approx. EUR 61,117) for the 2019/2020 season.
16. In its reply to the claim, the Respondent maintained that, at the time of termination,
the Claimant had accrued outstanding remuneration in an amount lower than what
he indicated in his claim. More specifically, the Respondent claimed that it had
performed several payments for the Claimant, so that “the total unpaid receivables
of the Claimant is only 51,571.94 Euro”.
17. With regards to the above, the Respondent provided the following payment
confirmation:
“On 26.12.2019 EUR 1.500,00;
On 20.12.2019 EUR 20.000,00;
On 06.12.2019 TL 6.400,00 (equals to 1.003,13 EUR);
On 11.12.2019 TL 15.000,00 (Equals to 2.336,44 EUR);
On 06.12.2019 TL 6.400,00 (equals to 1.003,13 EUR);
On 03.12.2019 TL 3.200,00 (Equals to 503,93 EUR);
On 29.11.2019 TL 100,00 (Equals to 15,84 EUR);
On 29.11.2019 TL 6.600,00 (Equals to 1.045,95 EUR);
On 20.11.2019 TL 5.000,00 (Equals to 793,65 EUR);
On 07.11.2019 TL 700,00 (Equals to 110,23 EUR);
On 19.10.2019 TL 1.000,00 (Equals to 155,76 EUR);
In TOTAL 28.428,06 Euro”
18. Consequently, according to the Respondent, the Claimant did not have just cause to
terminate the contract and shall not be entitle to any compensation.
19. The Claimant commented on the payments and deemed that all amounts paid in TL
correspond to bonuses and cannot be taken into consideration for the calculation of
the outstanding remuneration.
20. Finally, the Claimant argued that he “adheres to his previous claim that he only
received the amounts as indicated in his claims. All other payments were either made
as bonus payments or were paid BEFORE signing the January 2019 contract and are
therefore not relevant”.
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter: Chamber or DRC) analysed
whether it was competent to deal with the matter at stake. In this respect, the DRC
took note that the present matter was submitted to FIFA on 20 January 2020. Taking
into account the wording of art. 21 of the 2019 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.
2. Subsequently, the DRC 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, the DRC is competent to deal with
the matter at stake, which concerns an employment–related dispute with an
international dimension between an Ghanaian player and a Turkish club.
3. Furthermore, the Chamber analysed which edition of the Regulations on the Status
and Transfer of Players should be applicable as to the substance of the matter. In this
respect, the DRC confirmed that, in accordance with art. 26 par. 1 and par. 2 of said
Regulations and considering that the present claim was lodged in front of FIFA on 20
January 2020, the January 2020 edition of the Regulations on the Status and Transfer of Players (hereinafter: the 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 Chamber 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 submitted by the parties. 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.
5. In this respect, the Chamber acknowledged that, on 17 January 2019, the Claimant
and the Respondent concluded an employment contract valid as from the date of
signature until 31 May 2020, according to which the Claimant was in principle entitled
to the total remuneration of EUR 150,000 for the 2018/2019 season and EUR 250,000
for the 2019/2020 season, inter alia.
6. Moreover, the Chamber noted that on 8 January 2020, the Claimant put the
Respondent in default of the payment for the last time, of the amount of EUR 80,000,
before unilaterally terminating the employment contract on 16 January 2020,
arguing that after 20 December 2019 the Respondent failed to make any further
payments.
7. Having recalled the above, the DRC observed that, the Claimant, in his claim,
requested a total amount of EUR 180,000, corresponding to EUR 90,000 as
outstanding remuneration and EUR 90,000 as compensation for breach of contract,
plus the relevant interest.
8. The Chamber further took note that the Respondent, for its part, maintained that it
had performed payments towards the Claimant, so that the latter at the time of
termination had outstanding dues for EUR 51,571.94. Thus, the Respondent deems
that the Claimant terminated the contract without just cause.
9. In this context, the Chamber established that the main issue to be examined in the
present case was whether the reasons put forward by the Claimant could justify the
termination of the contract with effect as from 16 January 2020.
10. At this point, the Chamber deemed it important to remind the parties of the general
legal principle of burden of proof, as reflected in art. 12 par. 3 of the Procedural Rules,
according to which “Any party claiming a right on the basis of an alleged fact shall
carry the burden of proof”. In this particular case, the Chamber deemed that the
Respondent bore the burden of proving that it indeed paid part of the Claimant’s
salaries in accordance with the contract.
11. Having said that, the Chamber noted that while the Respondent provided several
payment confirmations, it seemed that some of the payments were done with regards
to the decision of the DRC taken on 9 December 2019 and several other payments, in
particular the ones made in Turkish Lyra, appeared to be related to bonus payments,
as they were made in random dates, values and currencies, whereas the player’s salary
is clearly stipulated in the contract in a specific currency, amount, frequency and paydate.
12. Thus, the Chamber concluded that EUR 80,000, corresponding to the salary for
September until December 2019, had fallen due and remained outstanding at the
time of the termination of the contract by the Claimant. Consequently, the
Respondent had seriously neglected its financial contractual obligations towards the
Claimant.
13. Furthermore, the Chamber noted that the Claimant had put the club in default of
payment on 26 November 2019 and that the termination occurred on 16 January
2020. Thus, considering that more than 2 monthly salaries were outstanding, that the
Claimant put the club in default and that de facto the termination occurred more
than 15 days after the default notice, the Chamber concluded that the player had a
just cause to terminate the employment contract as per art. 14bis of the Regulations.
14. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber first established that the Respondent is liable to pay to the
Claimant the amounts which were outstanding under the contract at the moment of
the termination, i.e. EUR 80,000.
15. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the members of the
Chamber decided to award the Claimant interest at the rate of 5% p.a. on the
outstanding amount of EUR 80,000 as follows:
a. 5% interest p.a. on the amount of EUR 20,000 as from 1 October 2019;
b. 5% interest p.a. on the amount of EUR 20,000 as from 31 October 2019;
c. 5% interest p.a. on the amount of EUR 20,000 as from 1 December 2019;
d. 5% interest p.a. on the amount of EUR 20,000 as from 31 December 2019.
16. Having established the above, the DRC turned its attention to the consequences of
the unilateral termination of the employment contract by the Claimant with just
cause on 16 January 2020.
17. The DRC 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 other objective criteria, including, in particular, the remuneration and other benefits due to the Claimant
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.
18. In order to estimate the amount of compensation due to the Claimant in the present
case, the DRC first turned his attention to the remuneration and other benefits due
to the Claimant under the existing contract, which criterion was considered to be
essential. The Chamber deemed it important to emphasise that the wording of art.
17 par. 1 of the Regulations allows him to take into account both the existing contract
and the new contract, if any, in the calculation of the amount of compensation.
19. In the present case, the Chamber first established that, in case the contract would not
have been previously terminated, the Claimant would still have earned with the
Respondent the amount of EUR 100,000.
20. In continuation, the DRC verified as to whether the Claimant 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 art.
17 par. 1 ii), 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 general obligation to mitigate his damages.
21. The Chamber noted that the Claimant concluded an employment contract with the
Turkish club Istanbulspor, valid as from 17 January 2020 until 31 May 2020, for a total
amount of EUR 61,117 for the 2019/2020 season. Thus, the mitigated compensation
would amount of EUR 38,883.
22. Due to the fact that the contract was terminated due to overdue payables, the player
would also be entitled to additional compensation, in accordance with art. 17 par. 1
ii) of the Regulations, which the DRC in casu determined to be 3 monthly salaries at
the moment of termination. However, the DRC noted that the total compensation
would exceed the residual amount of the contract in in accordance with art. 17 par.
1 ii) of the Regulations the compensation due to the player should be limited to EUR
100,000.
23. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the DRC decided to partially accept the Claimant’s
claim and to establish that the Respondent must pay to the Claimant compensation
in the amount of EUR 100,000 plus interest at the rate of 5% p.a. as of 20 January
2020 until the date of effective payment.
24. Furthermore, taking into account the consideration under number II./3. 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.
25. In this regard, the Chamber 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.
26. 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.
27. 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.
28. The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Kamal Issah, is partially accepted.
2. The Respondent, Eskisehirspor Kulubu Dernegi, has to pay to the Claimant the
amount of EUR 80,000, plus 5% interest p.a. until the date of effective payment as
follows:
a. 5% interest p.a. on the amount of EUR 20,000 as from 1 October 2019;
b. 5% interest p.a. on the amount of EUR 20,000 as from 31 October 2019;
c. 5% interest p.a. on the amount of EUR 20,000 as from 1 December 2019;
d. 5% interest p.a. on the amount of EUR 20,000 as from 31 December 2019.
3. The Respondent has to pay to the Claimant compensation for breach of contract in
the amount of EUR 100,000, plus 5% interest p.a. as from 20 January 2020 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 email address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amounts plus interest 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 into one of the official FIFA languages (English, French, German, Spanish).
7. In the event that the amounts due in accordance with points 2. and 3. 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
amounts are 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 amounts are paid.
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 Dispute Resolution Chamber. 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