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 26 March 2020
Decision of the Dispute Resolution Chamber
passed on 26 March 2020,
in the following composition:
Clifford Hendel (USA), Deputy Chairman
Michele Colucci (Italy), member
Pavel Pivovarov (Russia), member
on the claim presented by the player,
Vieux Yakhya Sane, Senegal
represented by Mr Alexis Rutman
as Claimant / Counter-Respondent
and the club,
Bursaspor Kulübü Dernegi, Turkey
represented by Adv. Jale Demir
as Respondent / Counter-Claimant
regarding an employment-related dispute
between the parties
I. Facts of the case
1. On 1 July 2016, the Senegalese player, Vieux Yakhya Sane (hereinafter: the Claimant or player) and the Turkish club, Bursaspor Kulübü Dernegi (hereinafter: the Respondent or club) entered into an employment contract valid from 1 July 2016 until 31 May 2019, i.e. three seasons.
2. According to the employment contract, the Claimant was entitled to receive, during the season 2018/2019, the following remuneration and fringe benefits:
EUR 50,000 net on 1.07.2018,
EUR 27,500 net per month from August 2018 until May 2019 (10 months),
A car,
Four flight tickets per season.
3. During the course of the employment relationship, the player agreed to go on loan to the French club AJ Auxerre from 1 February 2017 until 31 May 2017. At expiry of such loan, the player returned to the club.
4. Subsequently, the player went on a second loan to AJ Auxerre, valid for the entire season 2017/2018. Accordingly, on 18 July 2017, the parties concluded an “addendum to the contract of employment” (hereinafter: the addendum) whereby they agreed to suspend the employment contract during the loan period, i.e. from 18th July 2017 until 30 June 2018.
5. Notwithstanding, the Respondent/Counter-Claimant agreed to pay the player following amount for the season 2017/2018:
EUR 100,000 net within the next 3 days after the club AJ Auxerre pays the loan fee to the Respondent/Counter-Claimant;
EUR 40,000 net on 01.02.2018.
6. The addendum further mentions that in case of late payment of the aforementioned amounts, 10% interest per annum will apply as from the date on which payment should be have been made as well as a penalty of EUR 10,000.
7. On 4 July 2018, once the second loan elapsed, the Claimant/Counter-Respondent requested the Respondent/Counter-Claimant to provide him with a flight ticket in order to renew his Turkish visa. Facing the absence of reply, the Claimant/Counter-Respondent reiterated his request on 5 July 2018 via WhatsApp message.
8. On 5 July 2018, the Respondent/Counter-Claimant replied to the Claimant/Counter-Respondent and requested him to buy his own ticket, and that the Respondent/Counter-Claimant would refund him at a later stage. In the same letter, the Respondent/Counter-Claimant pointed out that it had sent a letter to the Claimant/Counter-Respondent on 2 July 2018 by DHL by means of which it had requested the player to return to Bursa.
9. Some communications between the parties ensued regarding the player’s travelling and renewal of his visa, and the club made a reservation for a flight back to Turkey.
10. On 13 July 2018, the Respondent/Counter-Claimant sent the Claimant/Counter-Respondent a notification requesting him to immediately return to Bursa otherwise it will have to terminate the employment contract with just cause.
11. On 14 July 2018, the Claimant/Counter-Respondent informed the Respondent/Counter-Claimant that he was not able to use the club’s flight reservation to renew his visa since the reservation was lacking some information such as his name.
12. On 18 July 2018, the player bought his own flight ticket to return to Bursa on 20 July 2018. This information was communicated to the club by the player’s legal representative.
13. However, on the same day as the flight, the club sent a notice of termination of contract to the player. As the player received such termination notice prior to flying back to Turkey, he did not board the flight scheduled for the same day.
14. On 27 September 2018, the Claimant/Counter-Respondent lodged a claim against the Respondent/Counter-Claimant regarding outstanding remuneration and compensation for breach of contract.
15. The Claimant/Counter-Respondent requested the Dispute Resolution Chamber:
a) To order the Respondent/Counter-Claimant to pay the following amounts as overdue contractual payments:
o EUR 40,000 net plus 10% interest as from 1 February 2018;
o EUR 10,000 net as penalty, plus 5% interest as from 1 February 2018;
o EUR 50,000 net plus 5% interest as from 1 July 2018;
o EUR 1,090.74 net as reimbursement of the flight ticket he had to purchase himself, plus 5% interest as from 18 July 2018;
b) To order the Respondent/Counter-Claimant to pay the following amounts as compensation:
o EUR 275,000 net plus 5% interest as from 20 July 2018, corresponding to the residual value of the employment contract;
o EUR 82,500 net plus 5% interest as from 20 July 2018 as additional compensation, corresponding to 3 months of salary;
c) To impose a transfer ban for two periods on the Respondent/Counter-Claimant in accordance with art 17 par. 4 of the Regulations on the Status and Transfer of Players.
16. In support of his claim, the player sustained that he had never received the club’s letter dated 2 July 2018 ordering him to return to Bursa (cf. par. I.9 above).
17. The player added that the club could have expected that he would not immediately return to the club after the expiry of the loan as he needed to spend some time with his family and to pack his belongings.
18. The player further held that he had always acted in accordance with the employment contract and his only wish was that the club would buy and send him a valid flight ticket in order for him to renew his Turkish visa. The player deemed, therefore, that he could not be held responsible for the delay in his arrival to Turkey and that it was the club’s obligation to purchase the flight ticket.
19. In addition, the player underlined that the club had not paid him the second instalment under the addendum in the amount of EUR 40,000, to which should be added 10% p.a. plus the EUR 10,000 penalty as per the addendum. Equally, the club had not paid the player the amount of EUR 50,000 due on 1 July 2018 per the employment contract.
20. In reply to the player’s claim, the club pointed out that the present dispute began at the end of the second loan spell with AJ Auxerre, since the player did not return to Bursa for the last season of his contract.
21. In particular, the Respondent/Counter-Claimant argued that the Claimant/Counter-Respondent “had an irresponsible behaviour and did not share his contacts with the club manager”.
22. Since the training preparation for the new season started on 27 June 2018, the Respondent/Counter-Claimant tried to communicate with the player in order to arrange his return. However, the player could allegedly not be reached and had changed his phone number several times without communicating it to the club. Furthermore and contrary to the player’s allegation, the latter played his last match with AJ Auxerre on 11 May 2018 and had quite a reasonable time, until 27 June 2018, to sort out his private affairs.
23. Due to the Claimant/Counter-Respondent’s inaction, the Respondent/Counter-Claimant sent the player a letter on 2 July 2018 whereby it requested the player to immediately return to Bursa; such letter remained unanswered.
24. The Respondent/Counter-Claimant considers that the Claimant/Counter-Respondent did not want to return to the club and had no intention to do it. This is, according to the club, reflected in a WhatsApp conversation where the only excuse of the Claimant/Counter-Respondent was the issue related to the flight ticket. Nevertheless, the Respondent/Counter-Claimant made the requested reservation but the Claimant/Counter-Respondent was not eager to return.
25. In continuation, the club made reference to its letter dated 13 July 2018, by means of which it sent the player a second default notice. Given the absence of reaction of the claimant and the fact that he did not return to Bursa, the respondent had no other choice but to unilaterally terminate the employment contract on 20 July 2018.
26. Finally, the Respondent/Counter-Claimant points out that the player never informed them that he had bought a flight ticket to return on 20 July 2018. Should the club have been informed, it would never have terminated the employment contract. Furthermore, the club argued that the player is not entitled to receive the amount of EUR 50,000 due on 1 July 2018. This amount was for the 2018/2019 season, but since the employment contract was terminated and the Claimant/Counter-Respondent was no longer under contract with the club for the relevant season, such amount is no longer due.
27. The club, therefore, lodged a counter-claim against the player, requesting the Dispute Resolution Chamber:
a) to hold a hearing to clarify the facts in accordance with art .11 of the procedural rules;
b) to consider that the termination “has been done with right cause due to absenteeism of the claimant after two unanswered default notice”;
c) to order the claimant to pay the amount of EUR 82,500 as compensation due to unilateral termination with just cause;
d) to reject the complaint of the Claimant.
28. Upon receipt of the Respondent/Counter-Claimant’s position, the Claimant/Counter-Respondent requested a deadline extension to submit his replica. The deadline extension was granted but FIFA never received the Claimant/Counter-Respondent’s reply, although the latter argued that he had sent it on the final day of the deadline, namely on 10 December 2018. The FIFA IT services confirmed that no email was received from the Claimant/Counter-Respondent on that day.
29. The player remained unemployed following the termination of the employment contract and until its regular expiry.
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter: 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 submitted to FIFA on 27 September 2018. Consequently, the 2018 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 par. 2 and par. 3 of the Procedural Rules).
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 conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2020), it is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension between a Senegalese 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 on the Status and Transfer of Players (edition 2020) and considering that the present matter was submitted to FIFA on 27 September 2018 , the January 2018 edition of said Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the present matter as to the substance.
4. Having established the foregoing, and entering into the substance of the matter, the Chamber continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered for the assessment of the matter at hand.
5. The Chamber first recalled that the parties had concluded an employment contract valid from 1 July 2016 until 31 May 2019, i.e. for three seasons. Furthermore, the player was loaned to the French club, AJ Auxerre, for half of the season 2016/2017 and the entire season 2017/2018. On 18 July 2017, the parties entered into a further agreement on entitled “addendum to the contract of employment” whereby the Respondent/Counter-Claimant agreed to pay the Claimant/Counter-Respondent the following amounts during the season 2017/2018:
EUR 100,000 net within the next 3 days after the club AJ Auxerre pays the loan fee to the Respondent/Counter-Claimant;
EUR 40,000 net on 01.02.2018.
6. The dispute appears to have started towards the end of the season 2017/2018, once the loan to AJ Auxerre finished. According to the player, he was waiting for the club to issue him a flight ticket in order to return to Turkey and to obtain a new visa. The club, on its part, argued that it had summoned the player to return to Bursa already on 2 July 2018, but that the player had failed to do so.
7. The parties were in regular contact in July 2018, during which the club asked the player to buy a flight ticket himself and they would refund him later. At some point, the club apparently made a reservation on a flight on behalf of the player, but the latter claimed that he could not use this reservation as it did not mention his personal data.
8. The club ultimately decided to terminate the contract on 20 July 2018, the same day on which the player was due to return to Turkey, after he had bought his own flight ticket.
9. The player lodged a claim against the club for outstanding remuneration and compensation for breach of contract, as he deemed that the club had no just cause to terminate the contract. The club equally lodged a counter-claim against the player for compensation for breach of contract, as it deemed that the player did not return to Bursa at the start of the season 2018/2019 without a valid reason.
10. The Chamber, therefore, determined that the main issue to be resolved in the present matter is whether the club had a just cause to terminate the employment contract on 20 July 2018 as well as the consequences, if any of such early termination.
11. In this context, the Chamber referred to its well-established jurisprudence, according to which 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 in order for an employer to ensure the employee’s fulfilment of his contractual duties, 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.
12. With this in mind, the Chamber deemed important to note that the player’s loan to AJ Auxerre had finished on 30 June 2018. According to the documentation on file, already on 5 July 2018, the player had enquired about his flight ticket with the club. In the Chamber’s opinion, whether the player had received the club’s summons dated 2 July 2018 was not decisive as it appears that the parties had been discussing the issue of the player’s flight tickets over the next days and weeks. The Chamber, therefore, concluded that the player had sufficiently shown his intention to return to the club as soon as possible.
13. In continuation, the DRC noted that the club proceeded to terminate the contract as the parties were still in discussions regarding the player’s flight ticket and the renewal of the player’s visa. Furthermore, the player had provided evidence that he had purchased a flight ticket to return to Turkey on 20 July 2018, i.e. on the same day as the club terminated the contract.
14. In view of the above, the Chamber came to the unanimous conclusion that the club manifestly did not follow the ultima ratio principle prior to terminating the contract. The player had clearly expressed his will to resume his activities with the club following the expiry of his loan to AJ Auxerre. Furthermore, the Chamber noted that, according to the employment contract, the club was to provide the player with four flight tickets per season. Consequently, it was unreasonable on the club’s part to assume that the player would simply buy his own flight ticket to come back to the club. Finally, it is proven that the player had promptly enquired about the issuance of a flight ticket.
15. On this basis, the Chamber found that the Respondent/Counter-Claimant did not have a just cause to terminate the employment contract on 20 July 2018.
16. Having established that the club is to be held liable for the early termination of the employment contract, the Chamber focused its attention on the consequence of such termination. In this regard, the Chamber first of all held that the counter-claim of the Respondent/Counter-Claimant is rejected.
17. The Chamber then reverted to the Claimant/Counter-Respondent’s claim for outstanding salaries and compensation. The Claimant/Counter-Respondent claimed that the instalment of EUR 40,000 due on 1 February 2018 as per the “addendum to the contract of employment” as well as the salary for the month of July 2018 remained outstanding. Moreover, the player, referring to the terms of the “addendum to the contract of employment”, held that 10% interest per annum applies on the amount of EUR 40,000, and that the penalty of EUR 10,000 should also be awarded to him.
18. The Chamber noted in this regard that the Respondent/Counter-Claimant had not contested that these amounts had remained outstanding. Therefore and in accordance with the principle of pacta sunt servanda, the Chamber decided that the Respondent/Counter-Claimant must pay the Claimant/Counter-Respondent the following amounts:
EUR 40,000 plus 10% interest p.a. on the said amount as from 1 February 2018 until the date of effective payment,
EUR 10,000 as penalty,
EUR 50,000 plus 5% interest p.a. on the said amount as from 1 July 2018 until the date of effective payment.
19. 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 members 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.
20. 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. The Chamber clarified in this respect that the employment contract did not include such a clause.
21. As a consequence, the members of 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 provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.
22. The Chamber recalled that the club terminated the contract on 20 July 2018 and that the contract was supposed to run until 31 May 2019. Thus, the player would have received, during this period, an amount equivalent to ten monthly salaries. As a consequence, the amount of EUR 275,000 serves as a basis for the calculation of the compensation.
23. In continuation, the player remained unemployed during the same period of time, which entails that he was not able to mitigate his damages.
24. In view of the above, the Chamber decided that the compensation for breach of contract shall be set at EUR 275,000, amount which is deemed fair and appropriate taking into account the overall circumstances surrounding the present matter. Furthermore, 5% interest p.a. shall apply on said amount as of 20 July 2018 until the date of effective payment.
25. Furthermore and with regard to the player’s request for the reimbursement of one flight ticket, the DRC noted that, although the employment contract did provide for the obligation on the club’s part to provide the player with four round trip flight tickets, the latter had not provided evidence of the actual costs incurred when he had to purchase his own flight tickets. Consequently and as is the standard practice in similar cases, the Chamber decided to award the player an amount estimated by FIFA Travel for the route in question. Therefore, the club must pay the player an additional amount of EUR 946 as reimbursement of one flight ticket for the route Dakar-Istanbul.
26. Finally and with regard to the player’s request for 3 additional monthly salaries, the Chamber decided to reject such request due to a lack of contractual and legal basis.
27. Furthermore, taking into account the consideration under number II./3. above, the Chamber 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.
28. In this regard, the Chamber established that, in virtue of the aforementioned rovision, it has competence to impose a sanction on the club. More in particular, the DRC pointed out that, against clubs, the sanction shall consist in a ban 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.
29. Therefore, bearing in mind the above, the DRC decided that, in the event that the club does not pay the amount due to the player within 45 days as from the moment in which the player, following the notification of the present decision, communicates the relevant bank details to the club, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.
30. The Chamber recalled that the above-mentioned sanction 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.
31. The Chamber concluded its deliberations by establishing that any further claims of the Claimant/Counter-Respondent are rejected.
III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant / Counter-Respondent, Vieux Yakhya Sane, is partially accepted.
2. The Respondent / Counter-Claimant, Bursaspor Kulübü Dernegi, has to pay to the Claimant / Counter-Respondent outstanding remuneration in the amount of EUR 100,000, plus interest as follows:
- EUR 40,000, plus 10% interest p.a., as from 1 February 2018 until the date of effective payment;
- EUR 10,000;
- EUR 50,000, plus 5% interest p.a., as from 1 July 2018 until the date of effective payment.
3. The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent compensation for breach of contract in the amount of EUR 275,000, plus 5% interest p.a., as from 20 July 2018 until the date of effective payment, as well as EUR 946.
4. Any further claim lodged by the Claimant / Counter-Respondent is rejected.
5. The counter-claim lodged by the Respondent / Counter-Claimant is rejected.
6. The Claimant / Counter-Respondent is directed to inform the Respondent / Counter-Claimant, 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 / Counter-Claimant must pay the amounts mentioned under points 2 and 3 above.
7. The Respondent / Counter-Claimant 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).
8. In the event that the amounts due in accordance with points 2 and 3 above are not paid by the Respondent / Counter-Claimant within 45 days as from the notification by the Claimant / Counter-Respondent of the relevant bank details to the Respondent / Counter-Claimant, the Respondent / Counter-Claimant 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).
9. The ban mentioned in point 8 above will be lifted immediately and prior to its complete serving, once the due amounts are paid.
10. In the event that the aforementioned sums 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 Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer