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 8 May 2020
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 8 May 2020,
regarding an employment-related dispute concerning the player Justin Junior MENGOLO
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairman
Alexandra Gómez Bruinewoud (Uruguay)/Netherlands, member
Stefano La Porta (Italy), member
CLAIMANT:
Justin Junior MENGOLO, Cameroon
Represented by Mr. Karim Djaraouane
RESPONDENT:
Kardemir Karabukspor, Turkey
I. FACTS OF THE CASE
1. According to the Cameroonian player, Justin Junior Mengolo (hereinafter: the Claimant or the
Player), he entered into an employment contract(hereinafter: the contract) with the Turkish club,
Kardemir Karabukspor (hereinafter: the Respondent or the Club), valid as from 31 July 2018 until
31 May 2020.
2. The Claimant provided a copy of the contract, which contains signatures on each page except
for the last page. The Claimant sustained that he was not given a fully signed copy of the
contract.
3. The contract contains the following clauses regarding remuneration (all amounts are net):
Season 2018/2019:
EUR 40,000 as advance payment to be paid as follows:
o EUR 4,500 on 25 July 2018,
o EUR 5,500 on 27 July 2018,
o EUR 30,000 on 12 August 2018,
EUR 110,000 salary for the entire season, i.e. EUR 11,000 per month between 30th August
2018 and 30th May 2019,
EUR 25,000 bonus “in case the Club plays play off matches or will be a champion at the
end of the season 2018/2019”,
EUR 50,000 “in case of Club becomes champion”.
Season 2019/2020 (if Club will be in Spor Toto 1 League):
EUR 40,000 to be paid on 12 August 2019,
EUR 130,000 salary for the entire season, i.e. EUR 13,000 per month between 30th August
2019 and 30th May 2020,
EUR 25,000 bonus “in case the Club plays play off matches or will be a champion at the
end of the season 2018/2019”,
EUR 50,000 “in case of Club becomes champion”.
Season 2019/2020 (if Club will be in Super League):
EUR 50,000 to be paid on 12 August 2019,
EUR 200,000 salary for the entire season, i.e. EUR 20,000 per month between 30th August
2019 and 30th May 2020.
4. With regard to fringe benefits, the contract provided that the Club would provide the Player a
rental car and accommodation as well as pay for four flight tickets Yaoundé-Istanbul-Yaoundé.
5. The contract also contained the following clause regarding unilateral termination:
“Player accepts and declares that Club has a right to terminate this contract with a notification
between 01.06.2019 – 30.06.2019 without any justification. If the Player or other clubs pay
350.000 Euro to the Club between the dates 01.01.2019 – 15.01.2019 and 01.06.2019 and
30.06.2019, the player have the right to terminate this contract”.
6. In a letter dated 3 December 2019, sent to the Respondent on 9 December 2019, the Claimant
indicated that he had only received EUR 4,500 as advance payment and that had not received
any further payment since. The Claimant further underlined that two months after the signature
of the contract, the Respondent had informed him that he was not able to qualify to play for
the team.
7. In the same letter, the Claimant indicated the following:
on 28 September 2018, he signed an employment contract with the Romanian club Astra
Giurgiu, according to which he was allegedly entitled to a monthly salary of EUR 5,000.
However, the Romanian club did not pay him for 3 months,
on 1 January 2019, the Claimant signed a new employment contract with the Maltese
club Gzira United for a monthly salary of EUR 2,000. According to the Claimant, he
remained at the Maltese club until June 2019 and remained unemployed since then.
II. PROCEEDINGS BEFORE FIFA
A. Position of the Claimant
8. On 27 January 2020, the Claimant lodged this claim against the Respondent for compensation
for breach of contract.
9. In support of his claim, the Player maintained that the Respondent had terminated the contract
as it was unable to homologate the contract due to a too large number of foreign players within
the team.
10. The Claimant mainly reiterated the content of his default notice dated 3 December 2019 as
detailed in par. I.7. above.
11. The Claimant requested the payment of EUR 171,000 within 10 days, taking into account (i) the
mitigated amounts from his subsequent contracts, (ii) the fact that the Respondent was no
longer obliged to pay his salary for the 2019/2020 season given that it did not play in the Turkish
first division anymore, and (iii) the Claimant’s right to additional compensation corresponding to
3 monthly salaries.
12. More specifically, the Claimant held that the residual value of the contract amounted to EUR
150,000. This said, the Claimant conceded that the residual value should be mitigated with the
total amount received when he was under contract with the Maltese club Gzira United, i.e. EUR
16,500 corresponding to 6 monthly salaries of EUR 2,000, plus EUR 4,500 as part of the signing
fee due under the contract. In addition, Claimant sought 3 monthly salaries in the amount of
EUR 37,500 as additional compensation.
B. Position of the Respondent
13. Despite being requested to provide its comments on the claim, the Respondent failed to do so.
C. Claimant’s contractual situation following the breach of contract
14. On 28 September 2018, the Claimant signed an employment contract with the Romanian club,
Astra Giurgiu, according to which he was allegedly entitled to a monthly salary of EUR 5,000.
15. On 1 January 2019, the Claimant signed a new employment contract with the Maltese club,
Gzira United, according to which he was entitled to a monthly salary of EUR 2,000 valid as from
the date of signature until 30 April 2019.
16. The player held that he remained unemployed as of 30 April 2019.
III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
17. First of all, the Dispute Resolution Chamber (hereinafter: 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 submitted to FIFA on 27 January 2020. Consequently, the Chamber concluded that
the November 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).
18. Subsequently, 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 (edition 2020) the Chamber is competent to deal with the
matter at stake, which concerns an employment-related dispute with an international dimension
between Cameroonian player and a Turkish club.
19. Furthermore, 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, and considering that the present claim was
lodged on 27 January 2020, the January 2020 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
20. The competence of the Chamber and the applicable regulations having been established, the
Chamber entered into the substance of the matter. In doing so, Chamber started by
acknowledging the above-mentioned facts as well as the documentation contained in the 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 the assessment
of the matter at hand. In particular, the Chamber recalled that in accordance with art. 6 par. 3
of Annexe 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
Transfer Matching System (TMS).
21. This said, the Chamber noted that the Claimant seeks to argue that he had concluded an
employment contract with the Respondent valid as from 31 July 2018 until 31 May 2020. The
employment contract which the Claimant provided, did not contain any signatures on the last
page, although it did contain some signatures on other pages of the contract.
22. The Player claims that the Respondent terminated the contract as it had exhausted its quota of
foreign players and, therefore, the Player was not able to qualify to play for the team.
Furthermore, he sent the Club a default notice on 9 December 2019, highlighting that he had
only received EUR 4,500 as part of the signing on fee but no further payment from the Club.
23. The Player, therefore, claims compensation for breach of contract in the total amount of EUR
171,000, considering the mitigated compensation and the three additional months in
accordance with art. 17 par. 1 of the Regulations.
24. The Respondent, for its part, failed to reply to the claim. Thus, the present matter shall be
assessed on the basis of the documents on file (cf. art. 9 par. 3 of the Procedural Rules).
25. The Chamber then reverted to the documents presented by the Claimant in support of his claim
and immediately acknowledged that some doubts may be raised as to the actual validity of the
employment contract, as it is not signed on its final page. The Claimant himself admitted that
he never received a fully signed copy.
26. Having stated the aforementioned, the Chamber wished to highlight that in order for an
employment contract to be considered as valid and binding, an essential element is undoubtedly
that it contains the signature of both parties to the contract.
27. At this point, the Chamber referred to 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. The
Chamber considered that a party’s burden of proof cannot be deemed to be met or lightened
by the mere fact of the other party’s (here, Respondent’s) failing to participate in the proceedings
or to address the point at issue. Applying this principle in the present matter, the Chamber
concluded the burden of proof lay with the player, who had to prove that the contract had duly
been signed by both parties.
28. In this regard and after having carefully studied the copy of the contract which the Claimant
provided in support of his claim, the Chamber held that the said contract was indeed not signed
on the last page.
29. In light of the above, the majority of the Chamber concluded that it wasA not satisfied that the
contract upon which the Claimant bases his claim was validly signed by both parties, and
therefore, could not comfortably considered it as having been binding.
30. Furthermore, the Chamber duly noted neither the Claimant’s alleged transfer to the Respondent,
nor, logically, the employment contract which the Claimant relies on, can be found in TMS.
31. As to the Claimant’s allegation that the Respondent had terminated the contract unilaterally due
to the fact that it had allegedly exhausted its foreigner quota, the Chamber noted that the Player
had not produced any evidence that the Respondent had indeed terminated the contract.
32. As a consequence, the majority of the Chamber decided that, since the Claimant had not been
able to prove that an employment contract had been validly been concluded between himself
and the Respondent, the question of eventual breach need not be addressed.
33. All the above led the majority of the Chamber to conclude that the Player’s claim must be
rejected.
IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
The claim of the Claimant, Justin Junior Mengolo, is rejected.
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).
NOTE RELATING TO THE PAYMENT OF THE PROCEDURAL COSTS:
If applicable, payments to FIFA should be made by wire transfer in Swiss francs (CHF) to the following
bank account:
366.677.01U (FIFA Players’ Status) UBS Zurich,
SWIFT: UBSWCHZH80A, Clearing number 230, IBAN: CH 27 0023 0230 3666,
Please mention the applicable reference number
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