F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 20 February 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 20 February 2020,

in the following composition:

Clifford Hendel (USA), Deputy Chairman

Roy Vermeer (The Netherlands), member

Daan De Jong (The Netherlands), member

on the claim presented by the player,

Geoffrey Mujangi Bia, Belgium,

represented by Mr Lucien Valloni

as Claimant

against the club,

Kayserispor Kulübü, Turkey

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 30 June 2017, the player, Geoffrey Mujangi Bia (hereinafter: the player or the Claimant), concluded an employment contract with the Turkish club, Kayserispor Kulübü (hereinafter: the club or the Respondent), valid as from 30 June 2017 “and be effective during the football seasons of 2017/2018, 2018/2019 and 2019/2020”.

2. According to the contract, the player was entitled to an amount of EUR 650,000 for the 2018/2019 season and EUR 700,000 for the 2019/2020 season.

3. On 21 May 2018, the parties concluded a settlement agreement titled “Protocol” (hereinafter: the protocol) according to which, the parties agreed on a mutual termination of the contract.

4. The protocol stipulated the following:

“1. The Parties agree to terminate the Contract, with their mutual consents and accords regardless of the name under which without claiming any remuneration and compensation from each other except for this Protocol. In conjunction with the signing of this Protocol, the Contract will immediately be ended with all effects and consequences and also any agreement, protocol and/or consensus, which determined employment relationship between the Parties, become invalid. The Player accepts, declares and undertakes, by reason of the employment relationship with KAYSERISPOR and regardless of the name under which, there is not any rights and receivables from KAYSERISPOR, to waive from the compensation and any other claims irrevocably, to absolve the KAYSERISPOR completely, absolute and irrevocably.”

“2. The Parties agree that as of the date of 31.05.2018, the Player is entitled to get totally net 250.000,00-Euro (Two Hundred Fifty Thousand Euros). Furthermore, the Parties fully agree that KAYSERISPOR shall pay to the Player in the amount of 350.000,00-Euro (Three Hundred Fifty Thousand Euros) as the compensation for the early termination of the Contract. Consequently, taking into consideration these amounts, KAYSERISPOR shall pay to the Player in the amount of 600.000,00-Euro (Six Hundred Thousand Euros) in total with regard to the total receivables of the Player and compensation, which have been determined in this article as shown below:

- 200.000,00-Euro […]: On the date of signing of this Protocol

- 100.000,00- Euro […]: On 10.08.2018

- 100.000,00-Euro […]: On 01.09.2018

- 50.000,00-Euro […]: On 20.09.2018

- 50.000,00-Euro […]: On 05.10.2018

- 100.000,00-Euro […]: On 25.10.2018

With the fulfillment of these payments, the Player releases to the Club for all the obligations set forth in the aforesaid Contract irrevocably and absolute.”

“6. The Contract concluded between the parties was terminated with immediate effect as of the signing of this Protocol.”

5. On 31 October 2018, the player put the club in default for the payment of EUR 400,000, corresponding to the last five instalments of the protocol. In the same letter, the player warned the club that if the amount is not paid by 15 November 2018, the Protocol shall be considered not valid and the employment contract will “be still in full force”.

6. On 15 November 2018, the club replied to the default notice and stated that it has provided the player with 5 promissory notes for the remaining 5 installments. Moreover, the club deemed that for 2 promissory notes, each in the amount of EUR 50,000 an executive proceeding has been started and therefore, in accordance with Turkish law, these amounts cannot be paid to the bank account of the player. For the rest of the amounts, the club requested the player to deliver back the promissory notes in order to pay the amounts to the player.

7. On 9 January 2019, the player put the club again in default and requested the payment of EUR 300,000 and offered to send the promissory notes back to the club upon payment.

8. On 25 April 2019, the player put the club in default for payment of the amount of EUR 400,000.

9. In its reply to said letter, the club again requested the return of the promissory notes in order to pay the amount.

10. On 16 May 2019, the player lodged a claim against the club in front of FIFA requesting the following:

- EUR 510,000 corresponding to the due amounts in accordance with the employment contract (see above), plus 5% interest p.a. as from 16 May 2019;

- Alternatively, EUR 400,000, corresponding to the unpaid part of the protocol, plus 5% interest as from the due dates.

11. In his claim, the player deemed that by not complying with the protocol, the protocol became invalid and in accordance with art. 2 of the protocol the employment contract shall be considered to be in full force.

12. Therefore, the player deemed that he is entitled to the residual amounts pursuant to the contract, which according to the player is EUR 710,000, corresponding to the following:

- EUR 100,000 as advanced payment;

- EUR 495,000 as monthly salaries as from August 2018 to April 2019;

- EUR 20,000 as the expenses for flight tickets for the 2017/2018 season;

- EUR 20,000 as the expenses for flight tickets for the 2018/2019 season ;

- EUR 75,000 as non-relegation bonus for the 2017/2018 season;

13. The player acknowledged to have received a payment in the amount of EUR 200,000, in accordance with the first instalment of the protocol, and therefore deemed that the due amount is EUR 510,000.

14. Alternatively, the player requested to be paid the residual value of the Protocol, which amounts to EUR 400,000.

15. In its reply to the claim, the club argued that the parties mutually agreed to terminate the contract by signing the protocol and therefore, the employment relationship between the parties has ended on 21 May 2018.

16. Moreover, the club deemed that it paid EUR 200,000 for the first installment and provided the player with 5 promissory notes for the amount of the residual value of the protocol. The club further stated that it has informed the player several times that it is willing to pay the outstanding amount, however only in exchange to the original promissory notes.

17. In addition, the Respondent deemed that 2 promissory notes have been delivered to 3rd persons and therefore “the player has lost his rights to demand of the payments of these 2 (two) promissory notes”.

18. Consequently, the club requested to reject the player’s claim. Alternatively, it asked to decide that the due amount is EUR 300,000 and that the player shall return the original promissory notes to the club.

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 16 May 2019. 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 January 2020), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment- dispute with an international dimension between a Belgian player and a Turkish club.

3. 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 (edition January 2020), and considering that the present claim was lodged on 16 May 2019, the June 2018 edition of the said Regulations (hereinafter: 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 aforementioned facts as well as the arguments and documentation submitted by the parties. The Chamber, however, 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 acknowledged that the Claimant and the Respondent signed an employment contract valid, as from 30 June 2017 until the end of the football season 2019/2020, in accordance with which the Claimant was entitled to a total remuneration as indicated in point I. 2.

6. In addition, the DRC took note that on 21 May 2018 the parties mutually terminated the employment contract by signing the document titled “Protocol”. In accordance with said protocol, the player was entitled to, inter alia, a payment in the amount of EUR 600,000 as indicated in point. I.4.

7. Moreover, the members of the DRC acknowledged that it was undisputed that the Respondent made a payment of EUR 200,000 as well as providing the Claimant with 5 promissory notes in the amount of EUR 400,000.

8. The Chamber then reviewed the claim of the Claimant who requested the payment of the residual amount of the employment contract in the total amount of EUR 510,000 considering that the protocol has become null and void due to the Respondent’s non-compliance with the terms as agreed in art. 2 of the protocol.

9. The Chamber also took into account the Claimant’s alternative claim for the amount of EUR 400,000, corresponding to the unpaid part of the amounts as stipulated in the protocol.

10. Furthermore, the members of the DRC observed that, for its part, the Respondent held that the employment contract was mutually terminated by the signature of the protocol and that no amounts relating to the employment contract are due. Moreover, the Chamber took note of the Respondent’s argument that it provided the player with 5 promissory notes in the amount of EUR 400,000 and that it was willing to pay the outstanding amounts if the player would return the original promissory notes.

11. At this stage, taking into account the positions of the parties, the members of the Chamber first analysed the clauses stipulated in the protocol and pointed out that the protocol did not contain any clause which would deem the protocol null and void in case the amounts were not paid to the player. Therefore, the DRC concluded that the player is not entitled to any amounts in accordance with the employment contract.

12. Having established the above, the Chamber determined that, since in principle the Claimant would be entitled to all the amounts he requested in accordance with the protocol, the main issue at stake was to evaluate if the Respondent had to pay the requested amounts directly to the Claimant, or if it had valid reasons not to so.

13. In this regard, the Chamber analysed art. 2 of the protocol and noted that said article did not foresee any alternative payment of the due amounts, in particular, the payment in promissory notes.

14. With due consideration to the above, the DRC noted that it was undisputed between the parties that the amount of EUR 400,000 had not yet been paid and that the only reason for the non-payment was that the promissory notes have not been returned by the Claimant.

15. On account of the aforementioned consideration, the Chamber established that the Respondent had failed to pay to the Claimant the total amount of EUR 400,000 and that, consequently, the Respondent is liable to pay the Claimant the amount of EUR 400,000. Equally, the DRC decided that the Claimant has to return to the Respondent the original promissory notes.

16. In addition, taking into account the player’s request and the DRC’s well-established jurisprudence, the Chamber decided that the club must pay to the player interest of 5% p.a. on the amounts of 400,000 until the date of effective payment as follows:

a. on the amount of EUR 100,000 as of 11 August 2018;

b. on the amount of EUR 100,000 as of 2 September 2018;

c. on the amount of EUR 50,000 as of 21 September 2018;

d. on the amount of EUR 50,000 as of 6 October 2018;

e. on the amount of EUR 100,000 as of 26 October 2018.

17. 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.

18. In this regard, the Chamber established that, in virtue of the aforementioned provision, it has competence to impose a sanction on the Respondent. More in particular, the DRC pointed out that, against clubs, the sanction shall consist in a ban 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.

19. 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.

20. Furthermore, the Chamber recalled that the above-mentioned sanction 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.

21. Finally, the DRC concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Geoffrey Mujangi Bia, is partially accepted.

2. The Respondent, Kayserispor Kulübü, has to pay to the Claimant outstanding remuneration in the amount of EUR 400,000, plus 5% interest p.a. until the date of effective payment,as follows:

a) on the amount of EUR 100,000 as of 11 August 2018;

b) on the amount of EUR 100,000 as of 2 September 2018;

c) on the amount of EUR 50,000 as of 21 September 2018;

d) on the amount of EUR 50,000 as of 6 October 2018;

e) on the amount of EUR 100,000 as of 26 October 2018.

3. Any further claim lodged by the Claimant is rejected.

4. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts mentioned under point 2. above.

5. The Respondent shall provide evidence of payment of the due amounts in accordance with point 2. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amounts due in accordance with points 2. 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 Respondent shall be banned 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 (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

7. The ban mentioned in point 6. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

8. In the event that the aforementioned amounts are 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 FIFA’s Disciplinary Committee for consideration and a formal decision.

9. The Claimant is ordered to return the relevant promissory notes to the Respondent within 45 days as from the date of notification.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note relating to the motivated decision (legal remedy):

According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport (CAS)

Avenue de Beaumont 2, CH-1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer