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 16 July 2020
Decision of the
Dispute Resolution Chamber
passed on 16 July 2020,
regarding an employment-related dispute concerning the player Wilfred Moke
COMPOSITION:
Geoff Thompson (England), Chairman
Michele Colucci (Italy), member
Abu Nayeem Shohag (Bangladesh), member
CLAIMANT:
Wilfred Moke, France
Represented by Mr Selçuk Demir
RESPONDENT:
MKE Ankaragucu Spor Kulubu Dernegi, Turkey
I. FACTS OF THE CASE
1. On 19 July 2019, the French player, Mr Wilfred Moke (hereinafter: the player or
Claimant) and the Turkish club, MKE Ankaragucu Spor Kulubu Dernegi (hereinafter: the
club or Respondent) signed an employment contract (hereinafter: the contract) valid as
from the date of signature until 31 May 2021.
2. According to art. 3 of the contract, the Respondent undertook to pay the Claimant, inter
alia, a salary of EUR 500,000 per season, payable as follows:
Season 2019/2020
EUR 100,000 to be paid on 31 August 2019;
EUR 40,000 to be paid on 30 September 2019;
EUR 40,000 to be paid on 31 October 2019;
EUR 40,000 to be paid on 30 November 2019;
EUR 40,000 to be paid on 31 December 2019;
EUR 40,000 to be paid on 31 January 2020;
EUR 40,000 to be paid on 28 February 2020;
EUR 40,000 to be paid on 31 March 2020;
EUR 40,000 to be paid on 30 April 2020;
EUR 40,000 to be paid on 31 May 2020;
EUR 40,000 to be paid on 30 June 2020.
Season 2020/2021
EUR 100,000 to be paid on 31 August 2020;
EUR 40,000 to be paid on 30 September 2020;
EUR 40,000 to be paid on 31 October 2020;
EUR 40,000 to be paid on 30 November 2020;
EUR 40,000 to be paid on 31 December 2020;
EUR 40,000 to be paid on 31 January 2021;
EUR 40,000 to be paid on 28 February 2021;
EUR 40,000 to be paid on 31 March 2021;
EUR 40,000 to be paid on 30 April 2021;
EUR 40,000 to be paid on 31 May 2021;
EUR 40,000 to be paid on 30 June 2021.
3. In addition to the above, the player was also entitled, for the season 2019/2020, to the
following benefits:
2 return flights in economy class Ankara-Paris-Ankara;
EUR 10,000 for the whole season for transportation and accommodation.
4. The contract further stipulated that if the contract had not been terminated at the end
of the first season, the Claimant would be entitled to the same benefits for the season
2020/2021, i.e. 2 return flights in economy class Ankara-Paris-Ankara and EUR 10,000
for the whole season for transportation and accommodation.
5. By means of a letter dated 17 February 2020, the Claimant contested the Respondent’s
decision to “not allow to him to train with A team”. The Claimant considered that this
“clearly shows that the Club intends to push the Player to agree on lower amount instead
of the deserved and this also constitutes a kind of mobbing.” In this context, the
Claimant granted the Respondent 3 days to allow him to attend the trainings of the first
team, failing which he would terminate the contract.
6. On 1 March 2020, the Claimant granted the Respondent 15 days to pay the amount of
EUR 80,000 as the salaries of January and February 2020 and to reintegrate him in the
first team’s trainings. In this regard, the Claimant indicated that the Respondent decided
at the start of February 2020 to exclude the Claimant from the list of 28 players. The
Claimant claimed that by doing so, the Respondent barred the Claimant from playing
football until June 2020 as the non-registration in February 2020 was done after the
transfer window closed. As such, the Claimant considered that “you have clearly and
materially expressed the fact that you were not any more interested in his services; hence
forcing my client to terminate his contract or to consider it as terminated from the
beginning of February 2019.”
7. By means of a letter dated 11 March 2020, the Claimant referred to a text message sent
by the Respondent to the Claimant whereby he was authorised not to train until
17 March 2020. As such, the Claimant informed the Respondent that he would come
to the training ground on the same day and stated that if he was denied access to the
club’s facilities and first team training as it had been the case since January 2020, he
would refer to the competent authorities. In this context, the Claimant granted the
Respondent a deadline to 16 March 2020 to react, failing which he would terminate the
contract.
8. On 18 March 2020, the Claimant terminated the contract (hereinafter: the termination
notice), raising the following points:
Non-payment of EUR 80,000 as the salaries of January and February 2020;
Not allowing him to train and play with the first team;
Training on the side without coaches and doctors;
Not inviting him to training camps;
Not registering him as a player of the first team.
9. On 19 March 2020, the Türkiye Futbol Fderasyonu took good note of the Claimant’s
termination notice.
10. On 30 March 2020, the Claimant lodged a claim against the Respondent in front of FIFA.
11. In his claim, the Claimant held that the Respondent had always paid his salaries late and
that his salaries of January and February 2020 remained outstanding.
12. Moreover, the Claimant stated that he was forbidden to train with the first team, having
to train on his own without any coaches and doctors.
13. The Claimant further explained that as of January 2020, he was no longer registered as
a player of the club, making it impossible for him to ever play for the club again. In this
respect, the Claimant argued that the Respondent’s behaviour was highly humiliating
and prejudicial to his football career.
14. In light of the above, the Claimant deemed to have terminated the contract with just
cause and requested the following:
EUR 760,000 as salaries from January 2020 to May 2021;
EUR 10,000 per year for transportation and accommodation;
EUR 300,000 as the sporting and moral damage suffered as a result of the
Respondent’s misconduct;
5% interest p.a. on the aforementioned amounts.
15. Finally, the Claimant claimed to have remained unemployed up to this day.
16. In spite of having been invited to do so, the Respondent did not reply within the deadline
granted.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as: 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 first submitted to FIFA on
30 March 2020. Consequently, the November 2019 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the
Procedural Rules).
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 and 2 in combination with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players (June 2020 edition),
it is competent to decide on the present litigation, which concerns an employmentrelated
dispute with an international dimension between a French 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 (June 2020 edition) and
considering that the present matter was submitted to FIFA on 30 March 2020, the March
2020 edition of said Regulations is applicable to the present matter as to the substance.
4. With the above having been established, the Chamber entered into the substance of the
matter. In doing so, it started to acknowledge the facts of the case as well as the
documents contained in the file. However, the Chamber emphasized that in the
following considerations it will refer only to facts, arguments and documentary evidence
which it considered pertinent for the assessment of the matter at hand.
5. In this respect, the Chamber firstly acknowledged that it was undisputed that the
Claimant and the Respondent had signed an employment contract valid as from the date
of signature until 31 May 2021. In continuation, the Chamber noted that it was also
undisputed that the Claimant was entitled, inter alia, to a remuneration as set out at
point I./2., 3. and 4. above.
6. What is more, the Chamber further noted that the Claimant terminated the contract on
18 March 2020.
7. Subsequently, the Chamber observed that the Respondent replied after the expiry of the
deadline granted. By failing to present its position to the claim within the granted
deadline, the Chamber was of the opinion that the Respondent renounced its right of
defence and thus, in principle, accepted the allegations of the Claimant.
8. Furthermore, as a consequence of the aforementioned consideration, the DRC
concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a
decision upon the basis of the documentation already on file; in other words, upon the
statements and documents presented by the Claimant.
9. In view of the foregoing, the Chamber established that the main issue to be analysed in
the present case is whether the contract was unilaterally and prematurely terminated
with or without just cause by the Claimant on 18 March 2020. Subsequently, the
Chamber shall establish the financial and/or sporting consequences to be borne by the
party found to be in breach of contract.
10. In this respect, the Chamber was eager to emphasise that 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,
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.
11. Furthermore, the members of the Chamber deemed it appropriate to recall the basic
principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules,
according to which a party claiming a right on the basis of an alleged fact shall carry the
respective burden of proof.
12. In this regard, the Chamber pointed out that the Claimant deemed to have terminated
the contract with just cause on 18 March 2020. In this respect, the Claimant underlined
that the Respondent failed to pay him the salaries of January and February 2020 in the
amount of EUR 80,000, that he was not allowed to train and play for the first team,
having to train on the side without the assistance of any coaches or doctors.
Furthermore, the Claimant stated that the Respondent failed to invite him to training
camps of the team and to register him as a player of the first team.
13. In this context, the Chamber wished to recall the content of art. 14bis par. 1 of the
Regulations, according to which “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)”.
14. With the aforementioned elements in mind, the members of the DRC highlighted that,
at the moment the Claimant terminated the contract, the Claimant had already granted
the Respondent a deadline of 15 days to make the relevant payments and an amount
equaling to 2 monthly salaries was outstanding. In these circumstances, the Chamber
considered that the Claimant could have legitimately lost faith in the ability and will of
the Respondent to fulfill its contractual obligation in due course.
15. Consequently, and considering the situation of the player at the time of termination, the
DRC came to the conclusion that the Claimant had terminated the contract on 18 March
2020, with just cause.
16. Having established that the Respondent is to be held liable for the early termination of
the employment contract, the Chamber focused its attention on the consequence of
such termination. Taking into consideration art. 17 par. 1 of the Regulations, the
Chamber decided that the Claimant is entitled to receive from the Respondent an
amount of money as compensation for breach of contract in addition to any outstanding
payments on the basis of the relevant employment contract.
17. First of all, the Chamber reverted to the Claimant’s claim in which he requested
EUR 760,000 as salaries from January 2020 to May 2021 and EUR 10,000 per year for
transportation and accommodation.
18. In this regard, the Chamber pointed out that the salaries of January and February 2020
were outstanding at the moment of the termination of the contract. Moreover, the Chamber observed that the amount of EUR 10,000 due by the Respondent for the
season 2019/2020 was also outstanding.
19. Consequently, taking into account that the contract was terminated on 18 March 2020,
and in accordance with the general legal principle of pacta sunt servanda, the Chamber
decided that the Respondent is liable to pay to the Claimant the amount of EUR 90,000,
corresponding to the monthly salaries of January and February 2020, as well as the
accommodation and transportation fee for the season 2019/2020.
20. In addition, taking into consideration the Claimant’s request and the constant practice
of the DRC in this regard, the Chamber decided to award the Claimant interest on the
above-mentioned amounts, as follows:
5% interest p.a. on the amount of EUR 40,000 as from 1 February 2020 until
the date of effective payment;
5% interest p.a. on the amount of EUR 40,000 as from 29 February 2020
until the date of effective payment;
5% interest p.a. on the amount of EUR 10,000 as from 19 March 2020 until
the date of effective payment.
21. 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.
22. 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. In this regard, the Chamber established that
the contract did not contain such a provision.
23. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant 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.
24. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber
proceeded with the calculation of the monies payable to the Claimant under the terms
of the contract until its term, i.e. 31 May 2021. In this context, the Chamber observed
that the amount corresponding to the accommodation and transportation for the season
2020/2021, i.e. EUR 10,000, was a fixed amount due to the Claimant. As such, the
members of the DRC were of the opinion that said amount should be considered as a
part of the fixed remuneration due to the Claimant.
25. Consequently, the Chamber concluded that the amount of EUR 670,000 (i.e. salaries of
March 2020 to May 2021 and accommodation and transportation fee for the season
2020/2021) serve as basis for the determination of the amount of compensation for
breach of contract.
26. In continuation, the Chamber verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time, by means of
which he would have been able to reduce his loss of income. According to the constant
practice of the DRC, such remuneration under a new employment contract shall be
taken into account in the calculation of the amount of compensation for breach of
contract in connection with the player’s general obligation to mitigate his damages.
27. In this context, the Chamber observed that the Claimant remained unemployed to this
day and was thus not able to mitigate his damages.
28. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must pay
the total amount of EUR 670,000 to the Claimant, which was considered reasonable
and proportionate as compensation for breach of contract in the case at hand.
29. In addition, taking into consideration the Claimant’s request and the constant practice
of the DRC in this regard, the Chamber decided to award the Claimant interest of 5%
p.a. as from 30 March 2020 until the date of effective payment.
30. Having established the above, the Chamber then referred to the Claimant’s request for
the payment of EUR 300,000 for the sporting and moral damage suffered as a result of
the Respondent’s misconduct.
31. In this regard, the Chamber deemed it appropriate to point out that the request for said
compensation presented by the Claimant had no legal or regulatory basis and observed
that no corroborating evidence had been submitted that demonstrated or quantified the
damage suffered. Therefore, the Chamber decided to reject this part of the claim.
32. Furthermore, the DRC referred to par. 1 and 2 of art. 24bis of the Regulations, which
stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant
amounts of outstanding remuneration and/or compensation in due time.
33. In this regard, the DRC 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.
34. Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amount 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.
35. Finally, the DRC recalled that the above-mentioned ban will be lifted immediately and
prior to its complete serving upon payment of the due amount, in accordance with art.
24bis par. 3 of the Regulations.
36. The DRC concluded its deliberations in the present matter by establishing that any
further request filed by the Claimant is rejected.
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant, Wilfred Moke, is partially accepted.
2. The Respondent, MKE Ankaragucu Spor Kulubu Dernegi, has to pay to the Claimant,
EUR 90,000 as outstanding remuneration, plus 5% interest p.a. until the date of effective
payment, as follows:
i. on the amount of EUR 40,000 as from 1 February 2020;
ii. on the amount of EUR 40,000 as from 29 February 2020;
iii. on the amount of EUR 10,000 as from 19 March 2020.
3. The Respondent has to pay to the Claimant, EUR 670,000 as compensation for breach of
contract, plus 5% interest p.a. as from 30 March 2020 until the date of effective payment.
4. Any further claims of the Claimant are rejected.
5. 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.
6. 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).
7. 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 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).
CONTACT INFORMATION:
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