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 2 July 2020

Decision of the

Dispute Resolution Chamber

passed via videoconference, on 2 July 2020,

regarding an employment-related dispute concerning the player Alagi Dodou Matar Sosseh

COMPOSITION:

Clifford J. Hendel (USA/France), Deputy Chairman

Michelle Colucci (Italy), member

Todd Durbin (USA), member

CLAIMANT:

ALAGI DODOU MATAR SOSSEH, Sweden

Represented by Mr Ercan Sevdimbaş

RESPONDENT:

FATIH KARAGÜMRÜK AS, Turkey

Represented by Mr Sami Dinc and Mr Emirhan Çeviker

I. FACTS OF THE CASE

1. On 16 July 2019, the Swedish player, Alagi Dodou Matar Sosseh (hereinafter: the Claimant or the player) and the Turkish club, Fatih Karagümrük AS (hereinafter: the Respondent or the club) concluded an employment contract (hereinafter: the contract), valid as from the date of signature until 31 May 2020.

2. Pursuant to article 6.1 of the contract, the club committed itself to pay to the player a total remuneration of EUR 100,000, payable as follows:

“[EUR 70,000] of the aforementioned amount is to be paid to the Player by the Club as the monthly salary in 10 (ten) equal installments […] between the period August 2019 – May 2020. The monthly salaries are to be paid the last day of the relevant months.

[EUR 30,000] of the abovementioned amount shall be paid to the Player until 01.06.2020 as a guarantee payment. This payment shall be paid in consideration of the whole service period of the Player during 2019/200 football season and it shall be a progressed amount at the end of the football season”.

3. As per the Claimant, the Respondent failed to pay his remuneration in a timely manner.

4. In this context, on 6 January 2020, the Claimant sent a default notice to the Respondent, requesting outstanding remuneration in the amount of EUR 30,000, granting the Respondent a 15 days’ deadline to remedy the default. According to the Claimant, the Respondent “neither made any payment nor made any attempt to amicably settle”.

5. On 22 January 2020, the Claimant unilaterally terminated the contract. As per the player, as a result of the Respondent’s “unacceptable, unfair and unlawful attitude”, he terminated the contract with just cause.

6. On 9 April 2020, the Claimant lodged a claim in front of FIFA against the Respondent, requesting the following:

a) Outstanding remuneration in the amount of EUR 30,000 plus 5% interest p.a. as from the due dates until the date of effective payment;

b) Compensation for breach of contract in the amount of EUR 22,415, plus 5% interest p.a. as from the date of termination, i.e. 22 January 2020, until the date of effective payment;

c) Additional compensation in the amount of EUR 60,000 plus 5% interest as from the date of termination, i.e. 22 January 2020, until the date of effective payment.

7. According to the player, the club “paid only 20.000.-EUR from 50.000.-EUR of due payments till the date of the termination of the contract, 22.01.2020”.

8. On 20 April 2020, the FIFA Administration notified the claim of the Claimant to the Respondent and granted the latter a deadline to submit its reply until 11 May 2020, which was thereafter extended until 21 May 2020.

9. On 25 May 2020, the Respondent filed its answer to the claim.

10. On 23 June 2020, the FIFA Administration informed the Respondent that its reply had been filed after the deadline set in FIFA’s letter of 5 May 2020 and thus reminded the Respondent of the content of art. 9 par. 3 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber.

11. Finally, the Claimant informed FIFA that on 22 February 2020, he signed an employment contract with the Vietnamese club, Sông Lam Nghe An (hereinafter: “SLNA”), valid as from the date of signature until “the end of the first round of the season (Estimated 22nd June 2020)”, according to which he was entitled to a monthly salary of USD 10,000.

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, it referred to 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) as well as to the fact that the present matter was submitted to FIFA on 9 April 2020 and decided on 2 July 2020. Therefore, the DRC concluded that the 2019 edition of the Procedural Rules is applicable to the matter at hand.

2. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering that the present claim was lodged on 9 April 2020, the March 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

3. Subsequently, the members of the Chamber referred to art. 3 par. 1 and 2 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, it is competent to adjudicate on the present employment-related dispute between a Swedish player and a Turkish club.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter, 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 DRC 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. First of all, the Chamber took into account that, according to the Claimant, on 16 July 2019, the parties concluded an employment contract valid as from the date of signature until 31 May 2020, according to which the Respondent undertook to pay to the Claimant a total remuneration of EUR 100,000 (cf. see point I.2. above).

6. In continuation, the members of the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that he had terminated the employment contract with just cause on 22 January 2020, after previously having put the club in default, since the Respondent allegedly failed to pay the Claimant’s remuneration in the amount of EUR 30,000. Consequently, the Claimant asked to be awarded his outstanding dues as well as the payment of compensation for breach of the employment contract.

7. At this point, the members of the Chamber recalled that the Respondent had filed its reply to the claim of the Claimant on 25 May 2020 only. This is, after the deadline set by the FIFA Administration, i.e. 21 May 2020. In this respect, the DRC referred to art. 9 par. 3 of the Procedural Rules which provides, inter alia, that “submissions received outside the time limit shall not be taken into account” (emphasis added).

8. Consequently, the members of the Chamber unanimously concluded that the reply of the club, filed after the expiration of the deadline, cannot be admitted to the file. As such, the DRC held that, in accordance with art. 9 par. 3 of the Procedural Rules, a decision shall be taken upon the basis of the admissible documents. In other words, upon the statements and documents presented by the Claimant.

9. Having said this, the DRC acknowledged that the central issue in the matter at stake was to determine as to whether the contract was in fact terminated by the Claimant, whether he had just cause for said termination and to decide on the consequences thereof.

10. With the above in mind, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the Claimant’s arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

11. In doing so, the DRC recalled that it has remained undisputed that, on 6 January 2020, the Claimant put the Respondent in default for the non-payment of the amount of EUR 30,000.

12. As regards the outstanding amount claimed by the player, the Chamber recalled that the Claimant did not provide a breakdown of the outstanding dues he was claiming, either in his claim, in his default letter or in his termination notice. As a consequence thereof, taking into account that the Claimant confirmed having only received the amount of EUR 20,000 (cf. see point I.7. above), the members of the Chamber started by considering that the Respondent had paid to the Claimant the amount of EUR 20,000, as follows: (i) EUR 14,000 corresponding to the monthly salaries for August and September 2019; and (ii) EUR 6,000 corresponding to the partial salary of October 2019.

13. On account of the aforementioned, the Chamber established that the Respondent, without any valid reason, failed to remit to the Claimant, until 22 January 2020, date on which the Claimant terminated the contract, the total amount of EUR 15,000, corresponding to the following: (i) EUR 1,000 as part of the monthly salary for October 2019; (ii) EUR 7,000 as the monthly salary for November 2019; and (iii) EUR 7,000 as the monthly salary for December 2019.

14. Consequently, pursuant to article 14bis of the Regulations, and considering that the Respondent had unlawfully failed to pay the player at least two monthly salaries, the Chamber decided that the Claimant had just cause to unilaterally terminate the employment contract on 22 January 2020 and that, as a result, the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant.

15. On account of the aforementioned considerations, the DRC established that the Respondent failed to remit the Claimant’s monthly remuneration in the total amount of EUR 15,000, corresponding to the remainder for the monthly salary of October 2019, i.e. EUR 1,000, as well as the 2 monthly salaries for November and December 2019, i.e. EUR 7,000 each.

16. Consequently, the Chamber decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding remuneration in the total amount of EUR 15,000.

17. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR 15,000 as from the due dates until the date of effective payment.

18. In continuation, having established that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant, the Chamber focused its attention on the consequences of such termination. In this regard, the members of the Chamber determined that the Respondent was not only to pay the amount of EUR 15,000 as outstanding remuneration to the Claimant, but also to pay compensation for breach of contract in conformity with art. 17 par. 1 of the Regulations.

19. In this context, the Chamber outlined that, in accordance with the 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.

20. In application of the relevant provision, the DRC 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 an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the DRC established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

21. As a consequence, the DRC 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 DRC 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. Bearing in mind the foregoing, the DRC proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract as from its date of termination with just cause by the Claimant, i.e. 22 January 2020, until its original date of expiry.

23. The members of the Chamber thus concluded that the Claimant would have received EUR 65,000 as total guaranteed remuneration if the contract had been executed until 31 May 2020. Consequently, the Chamber concluded that the amount of EUR 65,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

24. In continuation, the DRC 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.

25. Indeed, the Claimant signed a new employment contract with the Vietnamese club, SLNA. In accordance with such employment contract, which has been made available by the Claimant, valid as from 22 February 2020 until 22 June 2020, the Claimant was entitled to receive a monthly salary of USD 10,000.

26. Consequently, the DRC established that the value of the new employment contract concluded between the Claimant and SLNA for the period as from February 2020 until and including May 2020 amounted to USD 40,000 (approx. EUR 35,593).

27. Subsequently, the Chamber turned its attention to art. 17 par. 1 lit. ii) of the Regulations, according to which a player is entitled to an additional compensation of three monthly salaries, subject to the early termination of the contract being due to overdue payables. In case of egregious circumstances, the additional compensation may be increased up to a maximum of six monthly salaries, whereby the overall compensation may never exceed the rest value of the prematurely terminated contract.

28. With the above in mind, the Chamber decided to award the Claimant additional compensation corresponding to three monthly salaries, i.e. EUR 21,000, in accordance with the above-mentioned provision.

29. Consequently, on account of the above-mentioned considerations, the Chamber decided to partially accept the Claimant’s claim and that the Respondent must pay the amount of EUR 50,407 as compensation for breach of contract to the Claimant, which is considered by the Chamber to be a fair and reasonable amount.

30. Furthermore, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the amount of EUR 50,407 as from 9 April 2020 until the date of effective payment.

31. Furthermore, taking into account the consideration under number II.2. above, 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.

32. 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.

33. 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. immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

35. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further request filed by the Claimant is rejected.

34. Finally, the members of the Chamber recalled that the above-mentioned ban will be lifted

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Alagi Dodou Matar Sosseh, is partially accepted.

2. The Respondent, Fatih Karagümrük AS, has to pay to the Claimant, the following amount:

- EUR 1,000 as outstanding remuneration plus 5% interest as from 1 November 2019 until effective payment;

- EUR 7,000 as outstanding remuneration plus 5% interest as from 1 December 2019 until effective payment;

- EUR 7,000 as outstanding remuneration plus 5% interest as from 1 January 2020 until effective payment.

- EUR 50,407 as compensation for breach of contract without just cause plus 5% interest p.a. as from 9 April 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 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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