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 25 February 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 25 February 2020,

in the following composition:

Omar Ongaro (Italy), Chairman

Stéphane Burchkalter (France), member

Jérôme Perlemuter (France), member

on the claim presented by the player,

Jerry Akaminko, Ghana,

represented by Mr Nilo Effori & Ms Cintia R. Nicolau

as Claimant

against the club,

Eskisehirspor Kulübü, Turkey

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 11 July 2016, the Ghanaian player, Jerry Akaminko, (hereinafter: the Claimant), and the Turkish club, Eskisehir Spor Kulubu, (hereinafter: the Respondent) concluded an employment contract valid as from the date of signature until 31 May 2019 (hereinafter: the contract).

2. According to art. 3 of the employment contract, the Claimant was entitled, inter alia, to:

o EUR 400,000 for the season 2016/2017;

o EUR 500,000 for the season 2017/2018 to be paid as follows:

 EUR 150,000 as advance payment until 15 August 2017;

 EUR 350,000 in 10 equal instalments of EUR 35,000 each from August 2017 until May 2018, to be paid the 30th day of each month, except for the months of October 2017, December 2017, March 2018 (the 31st day) and February 2018 (the 28th day).

o EUR 600,000 for the season 2018/2019.

3. Moreover, according to clause 1 of the ‘special provisions’ of the employment contract, “if the [Respondent] fails to pay any of the amounts referred to in this Employment Contract for more than 60 days […], this contract may be terminated by the [Claimant] for just cause”. The same provision specified that, in order to “exercise the option, the [Claimant] shall make a written official notification to the [Respondent] and if the [Respondent] does not pay the due amount in full within 30 days after receiving this Legal Notification, the [Claimant] will be free to sign contracts with any other Club”.

4. Pursuant to clause 2 of the ‘special provisions’ of the employment contract, “the amounts of match bonuses shall be due and payable at the latest at the end of the month following the month during which the concerned matches are played”.

5. According to clause 14 of the ‘special provisions’ of the employment contract, “the [Respondent] shall provide the [Claimant] 6 (six) round-trip business class flight tickets to his country only for the use of the [Claimant] and his family each football season”.

6. On 24 May 2018, the Claimant put the Respondent in default of the payment of the amount of EUR 318,000.

7. On 11 July 2018, the Claimant unilaterally terminated the employment contract.

8. Subsequently, the Claimant concluded an employment contract with the Turkish club Istanbulspor valid as from 31 August 2018 until 31 May 2019.

9. On 12 March 2019, the Claimant lodged a claim against the Respondent in front of FIFA for outstanding remuneration and for breach of contract, requesting the following amounts plus “interest on the outstanding compensation amount at a rate of 5%” p.a.:

I. EUR 283,000, as “outstanding advance payment and outstanding salaries for the 2017/2018 season”;

II. EUR 636,432, as “compensation for breach of contract without just cause by the [Respondent]”;

III. EUR 136,364, as “additional compensation for breach of contract without just cause by the [Respondent]”;

10. The Claimant further requested to “mitigate the compensation […] in EUR 30,000 as the amount he received for his employment contract with Istanbulspor”.

11. The Claimant explained that the Respondent failed to remit to him the advance payment of EUR 150,000 due on 15 August 2017 and the salaries from August 2017 until 2018 “in a timely manner and/or in full, which constituted a continued breach of contract”.

12. More in particular, the Claimant pointed out that, until 22 December 2017, when he had accrued EUR 290,000 outstanding, the Respondent had not performed a single payment. The Claimant recalled that, after that moment, the Respondent made partial payment, totalling EUR 217,00 as follows:

i. EUR 25,000 on 22 December 2017;

ii. EUR 75,000 on 3 January 2018;

iii. EUR 50,000 on 23 January 2018;

iv. EUR 50,000 on 24 January 2018;

v. EUR 17,000 on 22 March 2018.

13. The Claimant explained, however, that after 22 March 2018 the Respondent failed to make any further payments.

14. The Claimant maintained that, having received only EUR 217,000 out of EUR 500,000 for the season 2017/2018 and after having put the Respondent in default without success, he had just cause to terminate the contract on 11 July 2018.

15. The Claimant further pointed out that he was contractually entitled to 6 one-way business class tickets from Istanbul to Accra, Ghana per season. Thus, taking the average price of EUR 3,036 each, the Claimant requested EUR 36,432 in this respect.

16. Moreover, the Claimant underlined that, after the termination of the contract, he signed an employment contract with the Turkish club Istanbulspor, valid as from 31 August 2018 until 31 May 2019, for a total amount of EUR 50,000 payable in 10 equal instalments of EUR 5,000 each. The Claimant deemed, however, that since the contract was mutually terminated on 31 January 2019, the mitigation should take into account only 6 instalments of the new contract, i.e. EUR 30,000.

17. Lastly, the Claimant requested the additional amount of EUR 136,364 on the basis of art. 17, par. 1 lit. ii of the FIFA Regulations on the Status and Transfer of Players.

18. In its reply to the claim, the Respondent maintained that, at the time of termination, the Claimant had accrued outstanding remuneration in an amount lower than what he indicated in his claim. More specifically, the Respondent claimed that it had performed payments for towards the Claimant, so that the latter at the time of termination had outstanding dues for EUR 115,481.05.

19. Consequently, according to the Respondent, the Claimant did not have just cause to terminate the contract.

20. However, concerning compensation, the Respondent requested that the FIFA Dispute Resolution Chamber apply a reduction of 75% to the amount calculated after the mitigation.

21. In his replica, the Claimant entirely reiterated the substance of his claim. However, with regard to the payments claimed by the Respondent, the Claimant acknowledged only receipts n. 7, 9, 10, 11, 16, for the total amount of EUR 217,000 and amended his claim accordingly.

22. Concerning the other receipts, the Claimant pointed out the following:

i. The payments received under receipt 1 and 2 for a total amount of EUR 150,000 attached by the Respondent were not addressed in the claim because they refer to the season 2016/2017;

ii. The payments received under receipt 3 to 6, 8 and 12 to 15 all relate to bonus payments. In this respect, the Claimant pointed out that the amounts evidenced by each of these receipts were paid by the Respondent in cash or by cheque and in Turkish Lira, not EUR, each upon signature on receipt. Moreover, the Claimant underlined that they represent much smaller amounts than payments of salary which, for the most part, were made by bank transfer;

iii. Receipt 17 is signed by a different player.

23. Alternatively, in case the Dispute Resolution Chamber deems that the first 2 receipts concern payments for the season 2017/2018, the Claimant amended his claim as follows: as the amount of EUR 150,000 were not paid in the first season, the Claimant asked outstanding remuneration in the total amount of EUR 366,000.

24. In its duplica, the Respondent replied that all the payments made to the Claimant relate to salaries as “the player has not been entitled to any bonus under the contract”, since none of the conditions specified in the contract for bonus entitlements occurred.

25. Moreover, with regards to the payments performed in Turkish Lira, the Respondent explained that it was the consequence of the economic downturn affecting the country and, as a consequence, Turkish clubs facing an increase in the exchange rate to EUR.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: Chamber or DRC) analysed whether it was competent to deal with the matter at stake. In this respect, the DRC took note that the present matter was submitted to FIFA on 12 March 2019 and decided on 25 February 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 DRC 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, the DRC is competent to deal with the matter at stake, which concerns an employment–related dispute with an international dimension between an Ghanaian player and a Turkish club.

3. Furthermore, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players 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 par. 2 of the said Regulations and considering that the present claim was lodged in front of FIFA on 12 March 2019, the June 2018 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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. In this respect, the Chamber acknowledged that, on 11 July 2016, the Claimant and the Respondent concluded an employment contract valid as from the date of signature until 31 May 2019, pursuant to which the Respondent undertook to pay to the Claimant a total amount of EUR 1,500,000.

6. Moreover, the Chamber acknowledged that, pursuant to clause 1 of the ‘special provisions’ of the employment contract, “if the [Respondent] fails to pay any of the amounts referred to in this Employment Contract for more than 60 days […], this contract may be terminated by the [Claimant] for just cause”. The same provision specified that, in order to “exercise the option, the [Claimant] shall make a written official notification to the [Respondent] and if the [Respondent] does not pay the due amount in full within 30 days after receiving this Legal Notification, the [Claimant] will be free to sign contracts with any other Club”.

7. Furthermore, the DRC took note that, according to to clause 2 of the ‘special provisions’ of the employment contract, “the amounts of match bonuses shall be due and payable at the latest at the end of the month following the month during which the concerned matches are played”.

8. In addition, the Chamber noted that in accordance with clause 14 of the ‘special provisions’ of the employment contract, “the [Respondent] shall provide the [Claimant] 6 (six) round-trip business class flight tickets to his country only for the use of the [Claimant] and his family each football season”.

9. The DRC further noted that on 24 May 2018, the Claimant put the Respondent in default of the payment of the amount of EUR 318,000, and that on 11 July 2018, the Claimant unilaterally terminated the employment contract, arguing that after 22 March 2018 the Respondent failed to make any further payments.

10. Having recalled the above, the DRC observed that, the Claimant, in his claim, requested a total amount of EUR 1,062,228 plus interest.

11. The Chamber further took note that the Respondent, for its part, maintained that it had performed payments towards the Claimant, so that the latter at the time of termination had outstanding dues for EUR 115,481.05.

12. The DRC further noted that the Claimant acknowledged receipt of EUR 217,000 and amended his claim accordingly.

13. In this context, the Chamber established that the main issued it would have to examine in the present case was whether the reasons put forward by the Claimant could justify the termination of the contract with effect as from 11 July 2018.

14. In this respect, as a consequence of the aforementioned considerations and taking into account the documentation presented by the parties to the dispute, the Chamber established that the Claimant terminated the contract, due to several outstanding salaries.

15. At this point, the Chamber deemed it important to remind the parties of the general legal principle of burden of proof, as reflected in art. 12 par. 3 of the Procedural Rules, according to which “Any party claiming a right on the basis of an alleged fact shall carry the burden of proof”. In this particular case, the Chamber deemed that the Respondent bore the burden of proving that it indeed paid all the Claimant’s salaries in accordance with the contract.

16. Having said that, the Chamber noted that while the club provided several payment confirmations, it seemed that some of the payments were done with regards to the first season and several other payments, in particular the ones made in Turkish Lyra, appeared to be related to bonus payments, as they were made in random dates, values and currencies, whereas the player’s salary is clearly stipulated in the contract in a specific currency, amount, frequency and paydate.

17. Thus, the Chamber concluded that EUR 3,000 with regards to the salary of September 2017, and eight monthly salaries, from October 2017 until May 2018, i.e. the amount of EUR 283,000, had fallen due and remained outstanding at the time of the termination of the contract by the Claimant. Consequently, the Respondent had seriously neglected its financial contractual obligations towards the Claimant.

18. Furthermore, the Chamber noted that the player had put the club in default of payment on 24 May 2018 and that the termination occurred on 11 July 2018. Thus, considering that more than 2 monthly salaries were outstanding, that the Claimant put the club in default and that de facto the termination occurred more than 15 days after the default notice, the Chamber concluded that the player had a just cause to terminated the employment contract as per art. 14bis of the Regulations.

19. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber first established that the Respondent is liable to pay to the Claimant the amounts which were outstanding under the contract at the moment of the termination, i.e. EUR 283,000.

20. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the members of the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amount of EUR 283,000 as of 12 March 2019 until the date of effective payment.

21. Having established the above, the DRC turned its attention to the consequences of the unilateral termination of the employment contract by the Claimant with just cause on 11 July 2018.

22. The DRC 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 other 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.

23. In order to estimate the amount of compensation due to the Claimant in the present case, the DRC first turned his attention to the remuneration and other benefits due to the Claimant under the existing contract, which criterion was considered to be essential. The Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows him to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation.

24. In the present case, the Chamber first established that, in case the contract would not have been previously terminated, the player would still have earned with the club the amount of EUR 600,000 corresponding to the entire 2018/2019 season.

25. 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 enabled to reduce his loss of income. According to art. 17 par. 1 ii), 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.

26. The Chamber noted that the Claimant concluded an employment contract with the Turkish club Istanbulspor, valid as from 31 August 2018 until 31 May 2019, for a total amount of EUR 50,000 payable in 10 equal instalments of EUR 5,000 each. The DRC further noted that the contract was mutually terminated on 31 January 2019 and that until that date the player managed to mitigate his damages in the amount of EUR 30,000. Thus, the mitigated compensation would amount of EUR 570,000.

27. Due to the fact that the contract was terminated due to overdue payables, the player would also be entitled to additional compensation, in accordance with art. 17 par. 1 ii) of the Regulations, which the DRC in casu determined to be 3 monthly salaries at the moment of termination. However, the DRC noted that the total compensation would exceed the residual amount of the contract in in accordance with art. 17 par. 1 ii) of the Regulations the compensation due to the player should be limited to EUR 600,000.

28. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the DRC decided to partially accept the Claimant’s claim and that the Respondent must pay to the Claimant compensation in the amount of EUR 600,000 plus interest at the rate of 5% p.a. as of 12 March 2019 until the date of effective payment.

29. Equally, with regard to the Claimant’s claim pertaining to flight tickets, the Chamber noted that the contract does not mention a specific amount to be paid to the Claimant in this regard and that the Claimant did not provide any evidence that the tickets for the 2017/2018 season were indeed paid by him and would have to be reimbursed by the club. Notwithstanding the foregoing, the DRC, in accordance with the Chamber’s established jurisprudence as well as the content of the contract (cf. point I.5 above), decided that the Respondent must pay to the Claimant the amount of CHF 7,980 for four one-way flight tickets in business class between Istanbul and Accra, on the basis of the information provided by FIFA Travel.

30. Furthermore, taking into account the consideration under number II./3. 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 and/or compensation in due time.

31. 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.

32. 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.

33. Finally, the DRC 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.

34. The Dispute Resolution Chamber 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, Jerry Akaminko, is partially accepted.

2. The Respondent, Eskisehirspor Kulübü, has to pay to the Claimant the amount of EUR 283,000, plus 5% interest p.a. as from 12 March 2019 until the date of effective payment, and CHF 7,980.

3. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of EUR 600,000, plus 5% interest p.a. as from 12 March 2019 until the date of effective payment.

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

5. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the email address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts plus interest mentioned under points 2. and 3. above.

6. The Respondent shall provide evidence of payment of the due amounts in accordance with points 2. and 3. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amounts due in accordance with points 2. and 3. 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).

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

9. In the event that the amounts due in accordance with points 2. and 3. above 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.

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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 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). 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

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Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer