F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 13 August 2020
Decision of the
Dispute Resolution Chamber
passed on 13 August 2020,
regarding an employment-related dispute concerning the player ABDELAYE DIAKITE
COMPOSITION:
Geoff Thompson (England), Chairman Alexandra Gómez Bruinewoud (Uruguay/The Netherlands) member Pavel Pivovarov (Russia), member
CLAIMANT:
ABDLEAYE DIAKITE, France
Represented by Mr Aydin Doganay
RESPONDENT:
MENEMEN BELEDIYESPOR KULÜBÜ DERNEGI, Turkey
I. FACTS OF THE CASE
1. On 8 August 2019, the Claimant and the Respondent concluded an employment contract (hereinafter: the contract), valid as from the date of signature until 31 May 2021. The contract stipulated that “this contract enters into force on signature date and be effective during the football season of 2019/2020 and – 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 and the Club doesn’t relegate from TFF1. League – 2020/2021 football season”. Moreover, according to the contract, the parties had the possibility to “notify each other that the contract is no longer valid for the football season 2020/2021” if “the Player is not involved in starting 11 of the squad for 25 official league matches (TKP matches not included) of TFF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 and/or the Club relegates from TFF1. League”.
2. According to the contract, the Claimant was entitled to the following remuneration and benefits:
“For 2019/2020 Football Season: 85.000,00-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 August 2019, (This payment is made in consideration of the whole service period of the Player during 2019/2020 football season and it shall be a progressed amount at the end of the football season.)
6.000,00- EUR between the dates of 5th and 15th of September, 2019
11.000,00- EUR between the dates of 5th and 15th of October, 2019,
6.000,00- EUR between the dates of 5th and 15th of November, 2019,
6.000,00- EUR between the dates of 5th and 15th of December, 2019,
6.000,00- EUR between the dates of 5th and 15th of January, 2020,
6.000,00- EUR between the dates of 5th and 15th of February, 2020
6.000,00- EUR between the dates of 5th and 15th of March, 2020
6.000,00- EUR between the dates of 5th and 15th of April, 2020
6.000,00- EUR between the dates of 5th and 15th of May, 2020
6.000,00- EUR between the dates of 5th and 15th of June, 2020
The Club shall pay the Player in the total amount of 5.000,00-EUR on 25.09.2019 for once in the 2019/2020 football season corresponding to rental payment and an appropriate car for Player.
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 and the Club doesn't relegate from TFF 1. league; this Contract will be continued for the season 2020/2021 as follow:
The amount of 115.000,00-EUR (One Hundred and Fifteen Thousand Euro) is to be paid to the Player by the Club on the below mentioned dates:
35.000,00- EUR on 15th of August 2020 as advance payment, (This payment is made in consideration of the whole service period of the Player during 2020/2021 football season and it shall be a progressed amount at the end of the football season.)
8.000,00- EUR between the dates of 5th and 15th of September, 2020
8.000,00- EUR between the dates of 5th and 15th of October, 2020,
8.000,00- EUR between the dates of 5th and 15th of November, 2020,
8 .000,00- EUR between the dates of 5th and 15th of December, 2020,
8.000,00- EUR between the dates of 5th and 15th of January, 2021,
8.000,00- EUR between the dates of 5th and 15th of February, 2021
8.000,00- EUR between the dates of 5th and 15th of March, 2021
8.000,00- EUR between the dates of 5th and 15th of April, 2021
8.000,00- EUR between the dates of 5th and 15th of May, 2021
8.000,00- EUR between the dates of 5th and 15th of June, 2021
In case of the Player will pay the Club in the amount of net 30.000,00-EUR between the dates of 31.05.2020 and 31.07.2020 as buy-out clause; the Player has the right to terminate this contract unilaterally.
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 and/or the Club relegates from TFF 1. league; the Parties have the right to notify each other that the contract is no longer valid for the football season 2020/2021.”
3. By a WhatsApp message dated 31 December 2019, the Claimant received a message saying that he did not need to go to Antalya, but rather to Izmir to discuss with the “president”. The Claimant was invited to come to the club’s facilities on “04.04.2020”.
4. On 6 January 2020, the Claimant put the Respondent in default to pay the total amount of EUR 19,500 within 15 days, corresponding to EUR 14,500 as salaries of September (EUR 3,500) and October (EUR 11,000) 2019, as well as EUR 5,000 for accommodation and car rental.
5. 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 contested 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”.
6. 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. 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”.
7. On 13 January 2020, the Claimant contested the fine and requested to be reintegrated into the team immediately.
8. 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.
9. On an unknown date (probably on 21 January 2020) the Respondent informed the Claimant that the training of 22 January is cancelled and the “performance measurement will be done at 16:00. Our training schedule will be updated according to the test results”.
10. On 24 January 2020, the Claimant unilaterally terminated the contract, 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.
11. In his claim, the Claimant stated that the Respondent threatened him early January 2020, whereby he would not be allowed to play for the Respondent 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 Claimant with a ban to train, pressure to accept a reduction of his salary, restriction to access the Respondent’s facilities, impossibility to consult a doctor and no access to a coach.
12. The Claimant explained that he never opened a bank account in Turkey since the Respondent told him that salaries would be paid in cash given the accounting problems faced by the Respondent.
13. With regard to the fine imposed by the Respondent, 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.
14. 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 threatened to call the police to evict him from his home. The Claimant mentioned that he was psychologically affected.
15. The Claimant is today without a club. However, he affirmed that he could have signed with a Polish club, Klub Pilkarski GKS Tychy S.A. 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. According to the Claimant, the Respondent did in fact refuse to sign the TPO, which dissuaded the Polish club.
16. Since the start of the contract, the Claimant said to have received EUR 2,500 as salary (note: he submitted receipts of two payments of EUR 1,500 and EUR 1,000).
17. At the date of termination, the Claimant held that EUR 52.500 was outstanding corresponding to salaries of August 2019 until January 2020.
18. This being said, 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. 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 maintained to have only received the amount of EUR 2,500.
19. In light of the above, the Claimant requested the following:
EUR 52,500 as outstanding remuneration, plus 5% interest p.a. as from 15 August 2019;
EUR 5,000 as the costs for his apartment and car rental, plus 5% interest p.a. as from 25 September 2019;
To observe a violent behaviour of the club against the player;
To reject the fine of EUR 30,000 imposed by the club;
EUR 30,000 as compensation for breach of contract (residual value for the season 2019/2020), plus 5% interest p.a. as from 15 August 2019;
EUR 50,000 as compensation for the violent behaviour of the club;
All the legal costs and costs of the proceedings on the club.
20. Despite being invited to do so, the Respondent failed to reply to the Claimant’s clam.
21. After the unilateral termination of the contract, the Claimant remained unemployed.
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 4 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 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. 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 (June 2020 edition), and considering that the claim was lodged on 4 May 2020, the March 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance
4. 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.
5. Having said that, the members of the Chamber acknowledged that on 8 August 2019, the Claimant and the Respondent signed an employment agreement 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 85,000 as follows:
EUR 20,000 on 15th of August 2019;
EUR 6,000 between the dates of 5th and 15th of September 2019;
EUR 11,000 between the dates of 5th and 15th of October 2019;
EUR 6,000 between the dates of 5th and 15th of November 2019;
EUR 6,000 between the dates of 5th and 15th of December 2019;
EUR 6,000 between the dates of 5th and 15th of January 2020;
EUR 6,000 between the dates of 5th and 15th of February 2020;
EUR 6,000 between the dates of 5th and 15th of March 2020;
EUR 6,000 between the dates of 5th and 15th of April 2020;
EUR 6,000 between the dates of 5th and 15th of May 2020;
EUR 6,000 between the dates of 5th and 15th of June 2020.
6. What is more, the members of the Chamber noted that the Claimant explained that on 24 January 2020, he had terminated the contract in force between the parties, invoking a just cause because of several outstanding salaries, the fact that the Claimant was ordered to train separate from the team and that several fines were imposed because of alleged missed training sessions.
7. 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. What is more, the Claimant alleges that – after he had allegedly missed some individual training sessions – an amount of EUR 30,000 was imposed on him on 10 January 2020.
8. Besides these events, the Claimant further explained that on 6 January 2020, he had put the Respondent in default for the total amount of EUR 19,500, as part of his salary for September 2019 and the full salary for October 2019, as well as an additional amount of EUR 5,000 for accommodation and car rental remained outstanding. The Claimant argues to have provided the Respondent with a 15 days’ deadline to comply with said request, however to no avail.
9. In view of the foregoing circumstances, the Claimant unilaterally terminated the contract on 24 January 2020, due to outstanding remuneration in the total amount of EUR 19,500.
10. The Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. Consequently, the Chamber deemed that the Respondent had renounced to its right of defence and, thus, had accepted the allegations of the Claimant.
11. As a consequence of the aforementioned consideration, the members of the Chamber concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, a decision shall be taken upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant.
12. 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.
13. 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 several contractually agreed amounts due to the Claimant, were not timely paid by the Respondent. Said allegations remained uncontested by the Respondent, which failed to submit its answer within the deadline provided by FIFA.
14. Following this general observations, the members of the Chamber deemed it important to outline that it remained uncontested that the Respondent had not fulfilled its financial obligations set forth in the employment contract signed between the parties. In this respect, the Chamber deemed it vital 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. Also, the Claimant explained that the amount of EUR 5,000, consisting of the contractually agreed hotel and car allowances, had remained unpaid, a circumstance which was also not contested by the Respondent.
15. Moreover, as to the fine imposed on the Claimant on 10 January 2020, the Chamber wished to point out that there is 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 not proven absence of several alleged training sessions, the Respondent acted in an abusive manner.
16. 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.
17. 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.
18. 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, reference was made to art. 14bis par. 1 of the Regulations, which, inter alia, stipulates that, in the case of a club unlawfully failing to pay a player at least two monthly salaries on their due dates, the player will be deemed to have a just cause to terminate his contract, provided that he has put the debtor club in default in writing and has granted a deadline of at least 15 days for the debtor club to fully comply with its financial obligation(s).
19. On account of all the above-mentioned considerations, and recalling the provisions set out in art. 14bis par. 1 of the FIFA Regulations, the Chamber decided that the Claimant had just cause to unilaterally terminate the employment relationship on 24 January 2020 based on art. 14bis par. 1 of the Regulations. Consequently, the Respondent is to be held liable for the respective consequences.
20. 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”.
21. 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 52,500, consisting of the overdue salary payment for the months of August, September, October, November and December 2019, as well as the salary for January 2020.
22. Moreover, the Chamber also underlined that the Claimant is also entitled to an additional amount of EUR 5,000 as reimbursement for the costs for his apartment and car rental, since said amounts were contractually agreed and remained unpaid.
23. 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 15 August 2019.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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 155,000 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract.
29. In continuation, the Chamber remarked that following the early termination of the employment contract at the basis of the present dispute, the Claimant was not able to find new employment. As a result, the Claimant was not able to mitigate his damages.
30. What is more, the Chamber noted that the Claimant limited his request for compensation to the total amount of EUR 80,000.
31. In view of all of the above, and referring to art. 17 par. 1 i. of the Regulations, the Chamber decided that the Respondent must pay the amount of EUR 80,000 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.
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 4 May 2020 on the compensation payable.
33. In conclusion, the DRC decided that the Respondent is liable to pay the total amount of EUR 132,500 net to the Claimant, consisting of the amount of EUR 52,500 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 80,000 corresponding to compensation for breach of contract.
34. 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.
35. 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.
36. In this regard, the Chamber pointed out that, against club
37. s, 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.
38. 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.
39. 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, Abdleaye Diakite, is partially accepted.
2. The Respondent, Menemen Belediyespor Kulübü Dernegi, has to pay to the Claimant, the following amount:
- EUR 52,500 as outstanding remuneration plus 5% interest p.a. as from 15 August 2019 until the date of effective payment;
- EUR 5,000 as outstanding amount plus 5% interest p.a. as from 26 September 2019 until the date of effective payment;
- EUR 80,000 as compensation for breach of contract plus 5% interest p.a. as from 4 May 2020 until the date of effective payment.
3. Any further claims of the Claimant are rejected.
4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.
5. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).
6. In the event that the amount due, plus interest as established above is not paid by the Respondent within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the 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 amount is 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 FINDINGS OF THE DECISION:
In accordance with arts. 15 and 18 of the Procedural Rules, this correspondence only communicates the findings of the decision without grounds.
Should any of the parties wish to receive the grounds of the decision, a written request must be received by FIFA, within 10 days of receipt of notification of the findings of the decision. Failure to do so within the stated deadline will result in the decision becoming final and binding and the parties being deemed to have waived their rights to file an appeal.
Whenever procedural costs are due, the grounds of the decision will only be notified to the party requesting the grounds and upon payment of the relevant procedural costs. If the procedural costs are not paid within 20 days of the notification of the findings, the request for the grounds shall be deemed to have been withdrawn. As a result, the decision will become final and binding and the relevant party will be deemed to have waived their right to file an appeal.
No costs shall be charged if a party decides not to ask for the grounds of the decision and, where applicable, the advance of costs will be reimbursed to the relevant party.
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 7701U
Please mention the applicable reference number
CONTACT INFORMATION:
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