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 25 March 2021

Decision of the

Dispute Resolution Chamber

passed on 25 March 2021

regarding an employment-related dispute concerning the player Wilfred Moke

COMPOSITION:

Omar Ongaro (Italy), Deputy Chairman

Daan de Jong (Netherlands), member

Alexandra Gómez Bruinewoud (Netherlands & Uruguay), member

CLAIMANT:

Wilfred Moke, France

RESPONDENT:

MKE Ankaragucu SK, Turkey

I. Facts

1. Following an employment-related dispute, on 16 July 2020, the Dispute Resolution Chamber decided the following:

“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.”

2. On 24 August 2020, the parties concluded a settlement for the aforementioned decision, stipulating the following:

OBLIGATIONS OF THE PARTIES:

1. The club agrees and accepts that the receipt of the above mentioned amount by the Player timely is the key component of the agreement.

The player agrees to waive the sums corresponding to the 5% interest and therefore not to demand the total sum of 15,200 euros.

Now herewith the Parties hereby come together and agree that the total amount of 760.000 euros.

Payment at the 28th of August 2020 : 260 000 euros

Payment at 28th of September 2020 : 250 000 euros

Payment at 28th of October 2020 : 250 000 euros

(…)

In case the club doesn't respect the two payment date, and after seven days of unsuccessful formal notice, the Club will have to pay a penalty of 10% of the outstanding amount.

3. On 6 October 2020, the player sent a default notice to the club, granting 24 hours to pay the second instalment of EUR 250,000.

4. On 28 October 2020, the player sent a second default notice, granting 7 days to pay “the sum of 250 000 euros at the 28th of september, 2020 and the sum of 250 000 euros at the 28th of October 2020.”

5. On 12 January 2021, the player lodged a claim before FIFA and requested the payment of the following amounts:

- 400 000 EUR for the outstanding amount due according to the agreement;

- 40 000 EUR as interest representing 10% of the outstanding amount, according to the

Agreement.

6. The player explained that he received the amount of EUR 260,000 on 28 August 2020, as well as the amount of EUR 100,000 afterwards, meaning that the amount of EUR 400,000 remains due.

7. Despite being invited to do so, the Respondent failed to reply to the claim.

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. Taking into account the wording of art. 21 of the January 2021 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 Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural Rules and emphasised 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, the Dispute Resolution Chamber is competent to deal with matters which concern employment-related disputes with an international dimension between players and clubs.

3. In continuation, the Dispute Resolution Chamber analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Dispute Resolution Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering the date when the claim was lodged, the January 2021 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4. With the above having been established, the Dispute Resolution 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 Dispute Resolution 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 noted that, following an employment-related dispute, on 16 July 2020, the Dispute Resolution Chamber decided, inter alia, that the Respondent shall pay to the Claimant the amounts of EUR 90,000 as outstanding remuneration and EUR 670,000 as compensation for breach of contract, plus interests.

6. The Chamber noted that, thereafter, on 24 August 2020 the parties concluded a settlement agreement concerning the aforementioned decision, by means of which they agreed upon the following:

“OBLIGATIONS OF THE PARTIES:

1. The club agrees and accepts that the receipt of the above mentioned amount by the Player timely is the key component of the agreement.

The player agrees to waive the sums corresponding to the 5% interest and therefore not to demand the total sum of 15,200 euros.

Now herewith the Parties hereby come together and agree that the total amount of 760.000 euros.

Payment at the 28th of August 2020 : 260 000 euros

Payment at 28th of September 2020 : 250 000 euros

Payment at 28th of October 2020 : 250 000 euros

(…)

In case the club doesn't respect the two payment date, and after seven days of unsuccessful formal notice, the Club will have to pay a penalty of 10% of the outstanding amount.”

7. Subsequently, the Chamber observed that the Claimant lodged a claim before FIFA for outstanding remuneration on the basis of the referred settlement agreement, and that he requested the payment of the following amounts:

- EUR 400,000 for the outstanding amount due according to the agreement;

- EUR 40,000 as interest representing 10% of the outstanding amount, according to the settlement agreement.

8. In this respect, the Dispute Resolution Chamber noted that the Respondent failed to present its response to the claim of the Claimant, in spite of having been invited to do so. By not presenting its position to the claim, the Dispute Resolution Chamber was of the opinion that the Respondent renounced its right of defense and, thus, accepted the allegations of the Claimant.

9. Furthermore, as a consequence of the aforementioned consideration, the Dispute Resolution Chamber 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.

10. In view of the above, and taking into account the documentation on file, the Chamber considered that the Claimant sufficiently justified that the amount of EUR 400,000, arising from the settlement agreement, remained unpaid. The Chamber took note in this respect that the player explained that he received the amount of EUR 260,000 on 28 August 2020, as well as the amount of EUR 100,000 afterwards, meaning that the amount of EUR 400,000 remains due.

11. Consequently, in strict application of the principle of pacta sunt servanda, the Dispute Resolution Chamber established that the Respondent has to pay to the Claimant, the total outstanding amount of EUR 400,000, as agreed in the settlement agreement concluded on 24 August 2020.

12. Thereafter, the Chamber went on to examine the player’s request to be paid with the amount of EUR 40,000 as penalty, representing 10% of the outstanding amount.

13. In this respect, the Chamber observed that settlement agreement stipulated that “in case the club doesn't respect the two payment date, and after seven days of unsuccessful formal notice, the Club will have to pay a penalty of 10% of the outstanding amount”

14. In relation to said clause, the Chamber observed that the Claimant sent default notices to the Respondent on 6 October 2020 and 28 October 2020, although the club committed to pay the amounts of EUR 250,000 on 28 September 2020 and EUR 250,000 on 28 October 2020, granting 7 days to pay the relevant amount, to no avail.

15. Hence, the Chamber considered that the player fulfilled the conditions for the payment of the penalty clause. In addition, the Chamber understood that the rate of 10% as stipulated in said penalty agreement, was fully reasonable within the context of a settlement agreement concluded after a previous decision of the DRC.

16. Consequently, in strict application of the principle of pacta sunt servanda, the Dispute Resolution Chamber established that the Respondent has to pay to the Claimant, the total outstanding amount of EUR 40,000, corresponding to the penalty fee.

17. Moreover, taking into account the request of the Claimant as well as the longstanding jurisprudence in this regard, the Dispute Resolution Chamber decided to award 5% interest p.a. over said amount as from 30 days following the notification of the decision.

18. Furthermore, taking into account the previous considerations, the Dispute Resolution 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.

19. In this regard, the Dispute Resolution 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.

20. Therefore, bearing in mind the above, the Dispute Resolution Chamber 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.

21. Finally, the Dispute Resolution 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, Wilfred Moke, is accepted.

2. The Respondent, MKE Ankaragucu SK, has to pay to the Claimant, the amount of EUR 440,000 as outstanding remuneration, plus 5% interest p.a. as from 30 days following the notification of this decision.

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 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.

7. This decision is rendered without costs.

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:

Fédération Internationale de Football Association

FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777