F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision13 November 2020
Decision of the Dispute Resolution Chamber (DRC)
passed on 13 November 2020
regarding an employment-related dispute concerning the player Ibrahim Sangare
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Stijn Boeykens (Belgium), member
Daan de Jong (Netherlands), member
CLAIMANT:
IBRAHIM SANGARE, France
RESPONDENT:
MENEMEN BELEDIYESPOR KULÜBÜ DERNEGI, Turkey
I. FACTS OF THE CASE
1. On 9 July 2019, the Claimant and the Respondent concluded an employment contract (hereinafter: “the contract”), valid as from the date of signature until 31 May 2021.
2. According to art. 6 of the appendix of the contract (hereinafter: “the appendix”), the Claimant was entitled to the following remuneration and benefits:
“For 2019/2020 Football Season: 70.000,00-EURO (Eighty-five Thousand Euros)
The aforementioned amount is to be paid to the Player by the Club on the below mentioned
dates:
20.000,00- EUR on 15th of July 2019, (on the date of signature)
5.000,00- EUR between the dates of 5th and 15th of September, 2019
5.000,00- EUR between the dates of 5th and 15th of October, 2019,
5.000,00- EUR between the dates of 5th and 15th of November, 2019,
5.000,00- EUR between the dates of 5th and 15th of December, 2019,
5.000,00- EUR between the dates of 5th and 15th of January, 2020,
5.000,00- EUR between the dates of 5th and 15th of February, 2020
5.000,00- EUR between the dates of 5th and 15th of March, 2020
5.000,00- EUR between the dates of 5th and 15th of April, 2020
5.000,00- EUR between the dates of 5th and 15th of May, 2020
5.000,00- EUR between the dates of 5th and 15th of June, 2020
If the Player is involved in starting 11 of the squad for 20 matches (TKP matches not included) in official league games, the Club accepts to pay 10.000,00-EUR to the Player.
If the player contributes to 10 goals with goals and assists in the official league games in Spor Toto 1. League (TKP matches not included), the Club shall pay 10.000,00-EUR to the player.
The Club shall provide an appropriate car (the discretion of choosing the car is belong to the Club) for the use of the Player during the continuation of this Contract provided that the Player has a driving license which is valid in Turkey. The daily costs of the car shall be paid by the Player.
The Club shall provide a furnished flat for use of the Player during the continuation of this Contract.
For 2020/2021 Football Season:
If the Player is involved in starting 11 of the squad for 25 official league matches (TKP matches not included) of TFF 1. League in 2019/2020 football season:
The amount of 150.000,00-EUR (One Hundred and Fifteen Thousand Euro) is to be paid to the Player by the Club on the below mentioned dates:
30.000,00- EUR on 15th of August 2020 as advance payment,
12.000,00- EUR between the dates of 5th and 15th of September, 2020
12.000,00- EUR between the dates of 5th and 15th of October, 2020,
12.000,00- EUR between the dates of 5th and 15th of November, 2020,
12.000,00- EUR between the dates of 5th and 15th of December, 2020,
12.000,00- EUR between the dates of 5th and 15th of January, 2021,
12.000,00- EUR between the dates of 5th and 15th of February, 2021
12.000,00- EUR between the dates of 5th and 15th of March, 2021
12.000,00- EUR between the dates of 5th and 15th of April, 2021
12.000,00- EUR between the dates of 5th and 15th of May, 2021
12.000,00- EUR between the dates of 5th and 15th of June, 2021
If the Player is not involved in starting 11 of the squad for 25 official league matches (TKP matches not included) of TFF 1. League in 2019/2020 football season;
The amount of 100.000,00-EUR (One Hundred Thousand Euro) is to be paid to the Player by the Club on the below mentioned dates:
30.000,00- EUR on 15th of August 2020 as advance payment,
7.000,00- EUR between the dates of 5th and 15th of September, 2020
7.000,00- EUR between the dates of 5th and 15th of October, 2020,
7.000,00- EUR between the dates of 5th and 15th of November, 2020,
7.000,00- EUR between the dates of 5th and 15th of December, 2020,
7.000,00- EUR between the dates of 5th and 15th of January, 2021,
7.000,00- EUR between the dates of 5th and 15th of February, 2021
7.000,00- EUR between the dates of 5th and 15th of March, 2021
7.000,00- EUR between the dates of 5th and 15th of April, 2021
7.000,00- EUR between the dates of 5th and 15th of May, 2021
7.000,00- EUR between the dates of 5th and 15th of June, 2021
In case the Club competes in Spor Toto Super League in 2020/2021, the Club shall pay 350.000,00-EUR to the Player in addition to the abovementioned amount as follows:
50.000,00- EUR between the dates of 5th and 15th of August 2020
30.000,00- EUR between the dates of 5th and 15th of September, 2020
30.000,00- EUR between the dates of 5th and 15th of October, 2020,
30.000,00- EUR between the dates of 5th and 15th of November, 2020,
30.000,00- EUR between the dates of 5th and 15th of December, 2020,
30.000,00- EUR between the dates of 5th and 15th of January, 2021,
30.000,00- EUR between the dates of 5th and 15th of February, 2021
30.000,00- EUR between the dates of 5th and 15th of March, 2021
30.000,00- EUR between the dates of 5th and 15th of April, 2021
30.000,00- EUR between the dates of 5th and 15th of May, 2021
30.000,00- EUR between the dates of 5th and 15th of June, 2021
The Club shall provide an appropriate car (the discretion of choosing the car is belong to the Club) for the use of the Player during the continuation of this Contract provided that the Player has a driving license which is valid in Turkey. The daily costs of the car shall be paid by the Player.
The Club shall provide a furnished flat for use of the Player during the continuation of this Contract.
Should the Club not promote to the Super League for 2020/2021 football season, the Player shall be released if the Player brings 70.000,00-EUR to the Club until the date of 31st July 2020”.
3. On 31 December 2019, the Claimant received a WhatsApp message saying “Hey ibo. It´s not necessary to go to Antalya anymore. The president wants to speak with you and abdi in Izmir on 04/04/2020. If u don´t want to go to Izmir, u can send your agent to Izmir for talks”.
4. On 2 January 2020, the Claimant received another WhatsApp message from the Respondent asking him to confirm if he will attend the meeting with the club´s President on Saturday. The Claimant replied: “I don´t understand why I am not authorize to come in Antalya. I am a player of the team. I don’t speak Turkish I can meet the President. Let me know when I can come in Antalya to train with the team”. The Respondent replied: “Bro it´s president´s decision. U have to be in Izmir for negotiations. If u can not come to Izmir please send your agent … If u accept to reduce your salary maybe u can stay with us they said”.
5. On 6 January 2020, the Claimant put the Respondent in default to pay the total amount of EUR 7,500 within 15 days, corresponding to EUR 2,500 as outstanding amount of September 2019 and EUR 5,000 as monthly salary of October 2019.
6. By means of another letter sent on the same day, i.e. 6 January 2020, the Claimant indicated that “the Club did not allowed the Player to participate to training sessions with the team in Antalya on 03.09.2020 without reason”. Instead, the Respondent asked the Claimant “to go to Izmir in order to meet the President of the club on 04.01.2020”, where “it was asked to the Player to lower his salary in order to continue to train with the professional team. Failing that, the player would be removed from the professional team in the same way that players do not accept the reduction of their salary.” Moreover, the Claimant complained about having been removed from the team’s WhatsApp group. As such, the Claimant requested to be authorised to join the “first team in Antalya as soon as possible in order to be able to train with his teammates”.
7. On an unknown date, the Respondent informed the Claimant of the decision of its Board of Directors dated 10 January 2020 to fine him in the amount of EUR 30,000 pursuant to art. 5 clauses c. and n. of the contract “on the grounds that he did not participate the trainings which is realized at the training field of the Titanic Hotel on 07.01.2020 and 08.01.2020 and at the training field of the Mardan Palace Hotel on 09.01.2020”.
8. On 13 January 2020, the Claimant contested the fine and requested to be reintegrated into the team immediately.
9. On 14 January 2020, the Claimant acknowledged receipt of a training schedule but informed the Respondent that “there is no indication about the starting date of the training and the address”, and asked for this information. The Respondent provided this information, with training resuming on 16 January 2020.
10. On an unknown date (note: probably on 21 January 2020) the Respondent informed the Claimant that the training of 22 January was cancelled and the “performance measurement will be done at 16:00. Our training schedule will be updated according to the test results”.
11. On 24 January 2020, the Claimant unilaterally terminated the contract on the basis of art. 14bis of the RSTP, the grounds being that the Respondent did not pay the outstanding amounts within 15 days as requested in the default letter dated 6 January 2020 which remained unanswered by the Respondent. The Claimant stated the monthly salaries of September, October, November 2019 and January 2020 were unpaid by the Respondent.
12. In his claim, the Claimant stated that the Respondent threatened him early January 2020, whereby he would not be allowed to play for the club again and would receive a fine if he did not accept a reduction of his salary. Following this, the Respondent executed his threats by isolating the player with a ban to train, pressure to accept a reduction of his salary, restriction to access club’s facilities, impossibility to consult a doctor and no access to a coach.
13. The Claimant explained that although he possessed a bank account in Turkey, the Respondent told him that salaries would be paid in cash given the accounting problems faced by the club.
14. The Claimant argued having sent two letters to the Respondent on 6 January 2020, to no avail and added that the only communication that he received from the Respondent was its decision to impose a fine to him. In this respect, the Claimant added that the Respondent at any point request him to re-join the team showing lack of interest in his services.
15. The Claimant also mentioned that he was not the only player in the team suffering the same treatment by the Respondent. In this regard, the Claimant referred to the claim lodged before FIFA by the player Diakite (ref. 20-00700) which was decided by the DRC on 13.08.2020.
16. With regard to the fine, the Claimant contested the date of the decision and the document, which do not match and held that the Respondent could not fine him for not being present at trainings in Antalya, when at the same time the Respondent forbid him to join the team in Antalya. The Claimant considered that the fine had no contractual basis and was only a result of his default notice.
17. The Claimant also explained that the Respondent cut his electricity and hot water in his home to threaten/scare him and to make him accept the salary reduction. The Respondent also took away the rental car provided to the Claimant, meaning he had to rent a car at his own costs.
18. The Claimant signed an employment contract with the French club, US Créteil, valid for 6 months. However, the Claimant stated that the Respondent told him that it would refuse to sign the TPO and would oppose to the ITC unless he accepted to sign a document acknowledging that he waived his right to outstanding remuneration. Due to this, the Claimant missed 4 official matches with his new club. He was only able to provisional register with the French club due to a FIFA´s decision dated 28 February 2020 (i.e. one month after the signature of the new contract).
19. Since the start of the contract, the Claimant maintained having only received EUR 22,500 as salary corresponding to:
a) EUR 20,000 in August 2019;
b) EUR 1,500 paid on 7 November 2019 and
c) EUR 1,000 paid on 12 December 2019.
20. At the date of termination, the Claimant held that EUR 22,500 was outstanding corresponding to the monthly salaries from September 2019 until January 2020.
21. In particular, the Claimant explained that on 27 September 2019, the Respondent requested him to sign a receipt written in Turkish for an amount of EUR 5,000. According to the Claimant, the Respondent argued that it needed a sign receipt in order to proceed to the transfer of the money which was allegedly for the salary of September 2019. The Claimant added not having received said amount.
22. In this respect, the Claimant explained to have been forced to sign documents in Turkish, which he did not understand, with amounts to be paid both in euros and Turkish liras (TRY). In this regard, the Claimant held that the Respondent tried to disguise these payments and the payments of bonuses in the payment of salaries. As salaries, the Claimant reiterated having only received the amount of EUR 22,500 (cf. point 21 above).
23. The Claimant further explained that monthly salaries were paid in EUR and bonuses in TRY respectively. Moreover the Claimant confirmed having received from the Respondent the following payments in TRY as bonuses:
“• 09/09/2019 : 3,000 Turkish Lira (TL) qui correspond en réalité à la prime versée suite
à la victoire contre le club de Giresunspor ;
• 10/10/2019 : 2,000 TL correspondant en réalité à la première partie de la prime versée
suite à la victoire contre le club d’Adana Demirspor ;
• 17/10/2019 : 2,000 TL correspondant en réalité à la seconde partie de la prime versée
suite à la victoire contre le club d’Adana Demirspor ;
• 08/11/2019 : 3,000 TL qui correspond en réalité à la prime versée suite à la victoire
contre le club de Cesar Grup Umraniyespor ;
• 21/11/2019 : 5,700 TL qui correspond en réalité à la prime versée suite à la victoire
contre le club Istanbulspor ;
• 29/11/2019 : 3,500 TL correspondant en réalité à la prime versée suite à la victoire
contre le club de Balikesirspor ;
• 07/12/2019 : 1,500 TL qui correspond en réalité à la prime versée suite au match nul
contre le club de Boluspor ;
• 20/12/2019 : 3,500 TL qui correspond en réalité à la prime versée suite à la victoire
contre le club d’Adanaspor ;
• 27/12/2019 : 4,000 TL correspondant en réalité à la prime versée suite à la victoire
contre le club de Bursaspor »
Note: The Claimant enclosed a printout of the Turkish Football Federation official website indicating the list of matches, dates and results for the season 2019/2020.
24. In light of the above, the Claimant requested the following:
(i) EUR 22,500 as outstanding remuneration + 5% interest as from 5 September 2019. Said amount is composed as follows:
EUR 2,500 as outstanding balance of the monthly salary of September 2019 (EUR 5,000 – EUR 1,500 + EUR 1,000);
EUR 5,000 as monthly salary of October 2019;
EUR 5,000 as monthly salary of November 2019;
EUR 5,000 as monthly salary of December 2019 and
EUR 5,000 as monthly salary of January 2020.
(ii) To observe a violent behaviour of the club against the player;
(iii) To reject the fine of EUR 30,000 imposed by the club;
(iv) EUR 125,000 as compensation for breach of contract corresponding to the residual value of the contract + 5% interest as from 5 September 2019. Said amount is composed as follows:
EUR 25,000 (EUR 5,000 x 5) as monthly salaries related to the months from February 2020 until June 2020 and
EUR 100,000 remuneration related to the sporting season 2020/21;
(v) EUR 50,000 as compensation for the violent behaviour of the club;
(vi) All the legal costs and costs of the proceedings on the club.
25. The Respondent referred to “payment order in enforcement proceedings without judgment” issued on 22 June 2020 by the execution office of the Republic of Turkey by which it was ordered to pay EUR 17,500 with EUR 9.11 interest to the player “actual payment date from 1 March 2020”.
26. In view of this order, the Respondent argued that there were already ongoing proceedings in Turkey, and that therefore the current proceedings in front of FIFA should be declared not admissible.
27. In view of this order, the Respondent argued that there were already ongoing proceedings in Turkey, and that therefore the current proceedings in front of FIFA should be declared not admissible. In addition, at the end of the position, the Respondent stated that the claim of the player is admissible and the FIFA DRC is competent.
28. The Respondent stated that the player was absent on 7, 8 and 9 January 2020, absences which were acknowledged by a public notary. As a consequence, on 10 January 2020, the Respondent fined the player for not attending said training sessions for an amount of EUR 30,000.
29. In this respect, the Respondent argued having informed the player that he could come to Izmir or send his agent, not that he had to go to Izmir himself.
30. Moreover, the club provided a copy of payments receipts allegedly made to the player for an amount of EUR 31,423.45. As such, the club concluded that the amount of EUR 61,423.45 (payments plus fine) should be offset from the amounts claimed by the Claimant, and that therefore the conditions of art. 14bis were not met when he unilaterally terminated the contract. The Respondent enclosed the following payment receipts:
Date
Amount
Equivalent to
09.08.2019
EUR 20,000
27.09.2019
EUR 5,000
07.11.2019
EUR 1,500
12.11.2019
EUR 1,000
09.09.2019
TRY 3,000
EUR 475.59
10.10.2019
TRY 2,000
EUR 309.36
17.10.2019
TRY 2,000
EUR 306.70
21.11.2019
TRY 5,700
EUR 904.71
29.11.2019
TRY 3,500
EUR 554.40
09.12.2019
TRY 1,500
EUR 234.23
20.12.2019
TRY 3,500
EUR 533.06
27.12.2019
TRY 4,000
EUR 605.40
31. In addition, the Respondent claimed that the economic crisis in Turkey and the 30% decrease in the exchange rate of the LYR/EUR had played a crucial part in the delays in paying the player’s remuneration.
32. The Respondent requested the FIFA deciding bodies:
to dismiss the claim of the Claimant;
to consider the requested amounts set-off by the remuneration paid and the fines imposed;
to impose costs on the Claimant.
33. After the unilateral termination of the contract, i.e. on 31 January 2020, the Claimant signed an employment contract with the French club, US Créteil, valid until 30 June 2020 involving a monthly salary amounting to EUR 1994.34.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 11 May 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 members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition June 2020), the Dispute Resolution Chamber is, in principle, competent to deal with the matter at stake. The matter concerns an employment-related dispute with an international dimension between a French player and a Turkish club.
3. With the aforementioned in mind, the DRC turned its attention to the Respondent´s allegation that there were ongoing proceedings in Turkey which were allegedly initiated by the Claimant.
4. In this respect, the Chamber noted that at the same time the Respondent stated that the DRC was competent to decide the present matter.
5. From the evidence at disposal, the Chamber held that the Respondent did not provide evidence of an existing proceeding in Turkey. In fact, the DRC observed that the Respondent only enclosed a request of payment made by the Claimant on 22 June 2020 (i.e. after lodging the present claim before FIFA).
6. Therefore, the DRC concluded that it was competent to enter into the substance and decide the present matter.
7. In continuation, the Chamber analysed which regulations 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 2 of the Regulations on the Status and Transfer of Players (October 2020 edition), and considering that the claim was lodged on 11 May 2020, the March 2020 edition of the aforementioned regulations (hereinafter: “the Regulations”) is applicable to the matter at hand as to the substance.
8. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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.
9. Having said that, the members of the Chamber acknowledged that on 9 July 2019, the Claimant and the Respondent signed the contract valid as from the date of signature until 31 May 2021, pursuant to which the Respondent undertook to pay to the Claimant, in the 2019/2020 season, the total amount of EUR 70,000 as follows:
EUR 20,000 on 15th of July 2019;
EUR 5,000 between the dates of 5th and 15th of September 2019;
EUR 5,000 between the dates of 5th and 15th of October 2019;
EUR 5,000 between the dates of 5th and 15th of November 2019;
EUR 5,000 between the dates of 5th and 15th of December 2019;
EUR 5,000 between the dates of 5th and 15th of January 2020;
EUR 5,000 between the dates of 5th and 15th of February 2020;
EUR 5,000 between the dates of 5th and 15th of March 2020;
EUR 5,000 between the dates of 5th and 15th of April 2020;
EUR 5,000 between the dates of 5th and 15th of May 2020;
EUR 5,000 between the dates of 5th and 15th of June 2020.
10. What is more, the members of the Chamber noted that the Claimant explained that on 24 January 2020, he had terminated the contract invoking a just cause because of several outstanding salaries, the fact that the Claimant was ordered to train separate from the team and that fines were imposed because of alleged missed training sessions.
11. The DRC observed that the Claimant maintained that as from 31 December 2019, the Respondent separated him from the Respondent’s first team and did not allow him anymore to participate in its training sessions unless he would accept a reduction of his salary. What is more, the Claimant alleges that – after he had allegedly missed some individual training sessions – an amount of EUR 30,000 as fine was imposed on him on 10 January 2020.
12. Besides these events, the DRC took note that on 6 January 2020, the Claimant put the Respondent in default for the total amount of EUR 7,500, corresponding to EUR 2,500 as outstanding amount of September 2019 and EUR 5,000 as monthly salary of October 2019 granting a 15 days’ deadline to comply with said request, however to no avail.
13. The DRC acknowledged that on the same date the Claimant requested in writing the Respondent to be authorised to join the “first team in Antalya as soon as possible in order to be able to train with his teammates”.
14. In particular, the DRC noted that the Claimant, in view of the foregoing circumstances, unilaterally terminated the contract on 24 January 2020, since he was not allowed to join the team and due to outstanding remuneration in the total amount of EUR 22,500.
15. On the other hand, the Chamber acknowledged that the Respondent argued that the Claimant was absent from training on 7, 8 and 9 January 2020.
16. Moreover, the DRC noted that the Respondent maintained having paid to the Claimant a total amount of EUR 31,423.45 as remuneration. The DRC further noted that the Respondent argued that the amount of EUR 61,423.45 (payments plus fine) should be offset from the amounts requested by the Claimant.
17. The members of the Chamber highlighted that the underlying issue in this dispute, considering the diverging position of the parties, was to determine as to whether the contract had been terminated with or without just cause by the Claimant on 24 January 2020. The Chamber also underlined that, subsequently, it would be necessary to determine the consequences of the early termination of the contractual relation.
18. The Chamber, first of all, wished to highlight that the unilateral termination of the contract by the Claimant on 24 January 2020, was based on the fact that the Respondent neither request the Claimant to re-join the team nor reply to the communications sent by the latter on 6 January 2020 and that several contractually agreed amounts due to the Claimant, were not timely paid by the Respondent.
19. Moreover, the Chamber reiterated that despite the facts described in point 18 above, the Respondent decided on 10 January 2020 to impose a disciplinary sanction on the Claimant.
20. At this stage, the DRC analysed the payments receipts presented by the Respondent and concluded that most of them were payments confirmed by the Claimant with only one exception, i.e. the payment of EUR 5,000 made on 27 September 2019 which the Claimant argued having signed the receipt but not receiving the wire transfer.
21. Following this general observations, the members of the Chamber deemed it important to outline that it remained uncontested that in the default notice dated 6 January 2020, the Claimant requested for the payment of the outstanding part of the September salary, as well as the full salary for October. Moreover, in the Claimant’s claim, it is further explained that next to the previously mentioned salaries, also the salaries for the months of November 2019, December 2019 and January 2020 had remained outstanding, and that the Respondent had only made a payment of EUR 2,500 as salary payment.
22. In this context, the Chamber reiterated that the Claimant confirmed having signed a receipt dated 27 September 2019 for an amount of EUR 5,000.
23. Moreover, as to the fine imposed on the Claimant on 10 January 2020 for alleged absences, the Chamber wished to point out that the Respondent neither requested the Claimant to re-join the team nor replied to the letters sent by the Claimant on 6 January 2020.
24. What is more, the DRC stated there was no clear evidence on file that the Respondent followed a due process while imposing this fine on the Claimant. In addition, according to the Chamber, an alleged absence of several training sessions can by no means justify a fine in the amount of EUR 30,000, i.e. almost 5 monthly salaries. Hence, the Chamber considered that by fining the Claimant based on an unproven absence of several alleged training sessions, the Respondent acted in an abusive manner.
25. Furthermore, and in any case, 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.
26. In conclusion, the Chamber determined that the Respondent could not set-off its debt towards the Claimant by means of the fine imposed on him and that thus, the amount of EUR 30,000 is due to the Claimant.
27. Subsequently, the Chamber observed that the Claimant had unilaterally terminated the contract on 24 January 2020, after he had put the Respondent in default and granted a deadline of 15 days for the club to comply with its financial obligations. In this respect, the DRC pointed out that art. 14bis of the RSTP does not apply to the matter at stake since the Claimant mentioned in his default notice of 6 January 2020 that 5 monthly salaries were unpaid but requested only one monthly salary and a half.
28. On account of all the above-mentioned considerations, and recalling the provisions set out in art. 14 of the Regulations, the Chamber decided that taking into account the absence of a reply of the Respondent to the Claimant´s letters, the lack of interest in his services and the overdue remuneration, the Claimant had just cause to unilaterally terminate the employment relationship on 24 January 2020 based on art. 14 of the Regulations. Consequently, the Respondent is to be held liable for the respective consequences.
29. First of all, the members of the Chamber concurred that the Respondent must fulfil its obligations towards the Claimant as per the employment contract up until the date of termination of the contract in accordance with the general legal principle of “pacta sunt servanda”.
30. In this context, the Chamber recalled that the Claimant confirmed having signed a receipt dated 27 September 2019 for an amount of EUR 5,000. The Chamber pointed out that said amount corresponds to half of September 2019 and half of October 2019 salaries.
31. On this basis the Chamber decided, that the Respondent is liable to pay to the Claimant the salaries that were outstanding at the time of the termination, i.e. the amount of EUR 17,500, consisting of the overdue salary payment for part of the month of October and full salary of November and December 2019, as well as the salary for January 2020.
32. In addition, taking into account the Claimant’s claim as well as the Chamber’s longstanding jurisprudence in this respect, it was decided to award the Claimant interest of 5% p.a. as of the respective due dates, i.e. the 15th day of each month.
33. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding remuneration on the basis of the relevant employment contract.
34. In this context, the Chamber outlined that, in accordance with said provision, 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 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.
35. In application of the relevant provision, the Chamber held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.
36. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the members of the Chamber took into account the remuneration due to the Claimant in accordance with the employment contract as well as the time remaining on the same contract, along with the professional situation of the Claimant after the early termination occurred.
37. In this respect, the Chamber pointed out that at the time of the termination of the employment contract on 24 January 2020, the contract would run until 31 May 2021. Consequently, taking into account the financial terms of the contract, the Chamber concluded that the remaining value of the contract as from its early termination by the Claimant until the regular expiry of the contract amounts to EUR 163,000 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract.
38. In continuation, the Chamber remarked that following the early termination of the employment contract at the basis of the present dispute, the Claimant was able to find new employment and to mitigate his damages in an amount of EUR 7,977.36 (i.e. EUR 1994.34 x 4 months).
39. What is more, the Chamber noted that the Claimant limited his request for compensation to the total amount of EUR 125,000.
40. Therefore, the Chamber established that the Claimant, in principle, would be entitled to a mitigated compensation amounting to EUR 117,000.
41. In continuation, and referring to art. 17 par. 1 ii. of the Regulations, the Chamber stated that since the early termination of the contract was due to overdue payables, in addition to the mitigated compensation, the Claimant shall be entitled to an additional compensation. However, the Chamber highlighted that the compensation cannot exceed the requested residual value, i.e. EUR 125,000.
42. In view of all the above, the Chamber decided that the Respondent must pay the amount of EUR 125,000 to the Claimant as compensation for breach of contract without just case, which is considered by the Chamber to be a reasonable and justified amount as compensation.
43. In addition, taking into account the Claimant’s claim as well as the Chamber’s longstanding jurisprudence in this respect, it was decided to award the Claimant interest of 5% p.a. as of 11 May 2020 on the compensation payable.
44. Furthermore, the DRC took note that the Claimant requested an amount of EUR 50,000 as “compensation for the violent behaviour of the club”. In this respect, the Chamber highlighted that since the claim for moral damages is not fully substantiated, it should be dismissed.
45. In conclusion, the DRC decided that the Respondent is liable to pay the total amount of EUR 142,500 to the Claimant, consisting of the amount of EUR 17,500 corresponding to the Claimant’s outstanding remuneration at the time of the unilateral termination of the contract with just cause by the Claimant and the amount of EUR 125,000 corresponding to compensation for breach of contract.
46. The Dispute Resolution Chamber concluded its deliberations in the present matter stipulating that any further claim lodged by the Claimant is rejected. In conclusion, the Claimant’s claim is partially accepted.
47. 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.
48. 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.
49. 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.
50. Finally, the Chamber 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.
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant, Ibrahim Sangare, is admissible.
2. The claim of the Claimant is partially accepted.
3. The Respondent, Menemen Belediyespor Kulübü Dernegi, has to pay to the Claimant, the amount of EUR 17,500 as outstanding remuneration plus 5% interest p.a. as follows:
- on the amount of EUR 2,500 as from 16 October 2019 until the date of effective payment;
- on the amount of EUR 5,000 as from 16 November 2019 until the date of effective payment;
- on the amount of EUR 5,000 as from 16 December 2019 until the date of effective payment;
- on the amount of EUR 5,000 as from 16 January 2020 until the date of effective payment.
4. The Respondent has to pay to the Claimant, the amount of EUR 125,000 as compensation for breach of contract.
5. Any further claims of the Claimant are rejected.
6. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amounts.
7. The Respondent shall provide evidence of payment of the due amounts in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).
8. In the event that the amounts due, plus interest as established 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 following consequences shall arise:
1.
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. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amounts are paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.
In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.
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).
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