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 (United States of America), Deputy Chairman

Roy Vermeer (The Netherlands), member

Daan de Jong (The Netherlands), member

on the matter between the player,

Dany Achille Nounkeu Tchounkeu, France

represented by Mr Sami Dinç

as Claimant

and the club,

Akhisar Belediye Gençlik ve Spor, Turkey represented by Mr Levent Polat & Mr Ergin Akçay

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 18 January 2018, the Claimant and the Respondent (hereinafter jointly referred to as: the parties) signed an employment contract (hereinafter: the contract), valid as from the date of signature until 31 May 2020.

2. According to art. 3 of the contract, the Respondent undertook to pay to the Claimant an annual salary of EUR 500,000 net for the season 2018-2019, payable in ten monthly instalments, as well as bonuses “which will be decided by the Board in the minimum guarantee amount of 100.000 Euros net.” In this regard, art. 3 of the contract further stated that “if the total amount of the team/win bonuses which will be decided by the Board is less than 100.000 Euros in 2018/2019 Season, the Club will pay the difference between 100.000 Euros and the total team/win bonuses until 15th of June 2019”.

3. For the season 2019/2020, the Claimant was also entitled, pursuant to art. 3 of the contract, to an annual salary of EUR 500,000 net, payable in ten monthly instalments, as well as the same bonus in the minimum amount of EUR 100,000.

4. In addition to the above, the Respondent also undertook to provide the player with a fully furnished apartment and to pay the rent of said apartment, with four business class flight tickets per season between Turkey and France or Cameroon, as well as with a car.

5. Pursuant to the contract, “all amounts indicated in this contract are to be considered as “net” payments. All amounts and remunerations are net of any kind of taxes and deductions of any nature. The obligation of taxes shall be borne by the Club.”

6. On 11 July 2019, the Claimant put the Respondent in default, setting a deadline of 15 days to pay EUR 90,000, corresponding to the monthly salaries of April and May 2019. Moreover, the Claimant maintained that he had been left out of the professional football team without valuable reason and therefore requested to be reintegrated in time in order to join the team’s preseason camp.

7. By a reply dated 25 July 2019, the Respondent referred to the Claimant’s knee injury, stating that:

“1. you did not play football for 7 months in 2018/2019 season,

2. you did not have surgery and did not properly cure your injury,

3. you shall have a surgery in order to play football,

4. you have one of the highest valued contracts (500.000 Euro for 2019/2020 Season),

5. our Club was relegated to lower league and had a significant loss of income.”

8. As such, the Respondent proposed to the Claimant to “terminate your contract with mutual agreement”. In regards to the outstanding remuneration, the Respondent invoked its current financial difficulties and indicated that “(y)our unpaid receivables from 2018/2019 season will of course be paid”.

9. By means of a letter dated 27 August 2019, the Claimant served the Respondent a second default notice, requesting the payment of EUR 285,000 within 15 days, as the monthly salaries of April and May 2019, as well as the guaranteed bonus payment for the season 2018-2019 in the amount of EUR 100,000 and the monthly salary of August 2019 amounting to EUR 95,000.

10. On 11 September 2019, the Respondent replied to the aforementioned, reiterating the content of its correspondence dated 25 July 2019 and informing the Claimant of the partial payment of the salary of April 2019 in the amount of EUR 22,500. Moreover, the Respondent considered that it did not owe any bonus to the Claimant, as the latter “could not play football for 7 months in 2018/2019 Season after 29.10.2018, because you did not have surgery and you did not properly cure your injury.”

11. On the same day, i.e. 11 September 2019, the Claimant reiterated his position and granted the Respondent a deadline until 12 September 2019 to remedy the default.

12. On 13 September 2019, the Claimant notified the Respondent of the termination of the contract (hereinafter: the termination letter).

13. On 30 October 2019, the Claimant lodged a claim against the Respondent in front of FIFA.

14. In his claim, the Claimant considered that six monthly salaries “on the pro-rata values defined in Art. 14 bis of FIFA RSTP” had not been paid despite the served default notices and therefore argued that he had just cause to terminate the contract on 13 September 2019, in accordance with art. 14 bis of the Regulations.

15. The Claimant also maintained that he had been left out of “the professional A team” without valuable reason and that the Respondent had “cancelled his licence”.

16. In light of the above, the Claimant requested the payment of:

- EUR 285,000 as outstanding remuneration, plus 5% interest as from the due dates until the date of effective payment;

- EUR 505,000 as compensation, plus 5% interest as from 13 September 2019 until the date of effective payment;

- EUR 300,000 as an additional compensation, plus 5% interest as from 13 September 2019 until the date of effective payment;

17. Finally, the Claimant asked that his legal costs and the costs of the proceedings be borne by the Respondent.

18. In its reply, the Respondent first held that the Claimant had suffered from a knee injury on 29 October 2018, following which he was advised to undergo specific surgery. The Respondent further argued that although the Claimant had expressed his wish to have said medical treatment in France, he never underwent surgery. As a consequence, the Respondent stated that the Claimant stayed injured until the termination of the contract, as the injury was not properly cured due to his fault and negligence. The Respondent alleged to have suffered sporting and financial damages from said injury.

19. Second, the Respondent affirmed that it only removed the Claimant from the registered players’ list for the second half of the 2018/2019 season, without cancelling his licence. In continuation, the Respondent sustained that after another medical inspection on 19 July 2019, the uncured injury aggravated the Claimant’s shape and made it impossible for him to “give %100 performance”. In this context, the Respondent recalled that by its letter dated 25 July 2019, it had offered to the Claimant the possibility to mutually terminate the contract and settle the outstanding dues.

20. Third, the Respondent referred to its aforementioned letter dated 11 September 2019, by means of which it duly informed the Claimant of the partial payment of the salary of April 2019, amounting to EUR 22,500.

21. In addition, the Respondent deemed that the bonus of EUR 100,000 requested by the Claimant in accordance with the agreed financial conditions for the 2018-2019 season, should be lowered to EUR 59,206 considering the overall bonuses already paid during said season in the amount of EUR 40,794. In this respect, the Respondent further argued that given that the Claimant had been injured, said amount should not be paid as it is considered as “team/win bonuses” and “as a reward”.

22. Fourth, the Respondent acknowledged a debt of EUR 67,500 in favour of the Claimant, corresponding to half a monthly salary for April 2019 and the full monthly salary for May 2019.

23. In line with the above, the Respondent held that the Claimant terminated the contract without just cause. However, in the alternative, the Respondent deemed that the alleged residual value of the contract would amount to EUR 405,000 and that the bonus of EUR 100,000 for the 2019-2020 season should not be due.

24. Upon FIFA’s request to comment on the aforementioned alleged payments made by the Respondent, the Claimant confirmed having received the total amount of EUR 63,283.37, corresponding to:

- EUR 22,500 as the partial payment of the monthly salary of April 2019. The Claimant asked that this amount be deducted from the outstanding amount claimed.

- (Turkish Lira) TL 263,500, which according to the Claimant equals to EUR 40,783.37. Therefore, the Claimant considered that he was still entitled to EUR 59,216.63, out of the bonus of EUR 100,000 for the season 2018-2019.

Consequently, the Claimant amended his claim as to the outstanding remuneration, requesting EUR 221,716.63 instead of EUR 285,000 (cf. I. 16.).

II. Considerations of the Dispute Resolution Chamber

1. First, the Dispute Resolution Chamber (hereinafter also referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 30 October 2019. Consequently, the 2018 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 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 2020), the Dispute Resolution Chamber was competent to decide on the present matter, which concerns an employment-related dispute between a French player and a Turkish club.

3. In continuation, 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 2020), and considering that the present claim was lodged on 30 October 2019, the October 2019 edition of said regulations (hereinafter: Regulations) were applicable to the matter at hand as to the substance.

4. The Chamber also recalled the content of art. 14bis par. 1 of the Regulations, according to which a player will be deemed to have just cause to terminate his contract if the club unlawfully failed to pay the player at least two monthly salaries on their due dates and that the player 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).

5. The competence of the Dispute Resolution Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, it started by acknowledging all the above-mentioned facts, the arguments and the documentation submitted by the Claimant and the Respondent. However, the Chamber 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.

6. First, the Dispute Resolution Chamber noted that the parties entered into an employment contract valid as from 18 January 2018 until 31 May 2020, according to which the Respondent undertook to pay to the Claimant an annual salary of EUR 500,000 net, payable in ten monthly instalments, as well as an annual bonus in the minimum amount of EUR 100,000.

7. Second, the judge noted that on 13 September 2019, the Claimant unilaterally terminated the contract, following two default notices sent to the Respondent.

8. In continuation, the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that he had terminated the contract with just cause. Consequently, the Claimant requested outstanding remuneration and compensation for breach of contract in the total amount of EUR 1,026,716.63. In this regard, the Chamber noted that the Claimant acknowledged receipt, during the course of the proceedings, of the payment of EUR 63,283.37 from the Respondent, for half of the monthly salary of April 2019 and a partial payment of the annual bonus of EUR 100,000 (precisely EUR 40,783.37).

9. Having established the aforementioned, the Chamber deemed that the underlying issue in the present dispute was to determine whether the contract had been unilaterally terminated with or without just cause by the Claimant on 13 September 2019, and the consequences thereof.

10. In this context, the Chamber observed that prior to the termination of the contract, the Claimant had put the Respondent in default twice. In particular, the Chamber noted that in the second and last default notice, the Claimant requested the payment of EUR 285,000 within 15 days, corresponding to the monthly salaries of April, May and August 2019, as well as the bonus payment for the season 2018-2019 in the amount of EUR 100,000.

11. The Chamber also took good note of the position of the Respondent, on the other hand, which considered that the bonus of EUR 100,000 had been partly paid to the Claimant and that the outstanding amount should not be paid, considering that the Claimant had been injured for a period of 7 months due to his own fault and negligence. The Chamber further observed that the Respondent acknowledged a debt of EUR 67,500 towards the Claimant for half of the monthly salary of April 2019 and the full monthly salary of May 2019.

12. Taking into account the aforementioned, the Chamber firstly observed that by means of his second default letter dated 27 August 2019, the Claimant granted the Respondent 15 days to comply with its financial obligations, i.e. the payment of three monthly salaries as well as the annual bonus. It appears that as a result, the Respondent paid half of the monthly salary of April 2019.

13. Therefore, the Chamber concluded that on the date of the termination letter, i.e. 13 September 2019, were outstanding in favour of the Claimant half of the monthly salary of April 2019, as well as the full monthly salaries of May and August 2019. In other words, two and a half monthly salaries were outstanding at the date of termination.

14. In light of the above, the Dispute Resolution Chamber decided that the Claimant terminated the contract with just cause pursuant to art. 14bis par. 1 of the Regulations. As such, the Respondent should be held liable for the early termination of the contract.

15. First, the Chamber noted that outstanding remuneration was still due to the Claimant. As such, the Chamber concluded that were outstanding half of the month of April 2019 in the amount of EUR 22,500, the months of May and August 2019 in the amounts of EUR 45,000 and EUR 95,000 respectively, as well as a part of the annual bonus of EUR 100,000 for the season 2018/2019 in the exact amount of EUR 59,216.63. Therefore, the Claimant is entitled to the amount of EUR 221,716.63 as outstanding remuneration.

16. In addition, taking into account the Claimant’s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR 221,716.63 as from the due dates until the effective date of payment.

17. Having established that the Respondent is to be held liable for the early termination of the contract without just cause, the Chamber focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC decided that the Claimant is entitled to receive from the Respondent an amount of money as compensation for breach of contract.

18. In these circumstances, 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 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 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.

19. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains 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 DRC established that no such compensation clause was included in the contract at the basis of the matter at stake.

20. As a consequence, 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.

21. 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 31 May 2020. In view of the foregoing, the DRC observed that the residual value of the contract is EUR 405,500, which shall serve as the basis for the final determination of the amount of compensation for breach of contract.

22. Having established the above, the Chamber recalled that according to the contract, the Claimant was also entitled to an annual bonus for the season 2019/2020. In this context, the DRC referred to the contract, which stipulated that the Claimant will receive “in the minimum guarantee amount of 100.000 Euros net (…)”. Considering that this annual bonus is a minimum amount guaranteed by the contract, the Dispute Resolution Chamber decided that the Claimant is entitled to the bonus for the season 2019/2020 in the amount of EUR 100,000.

23. 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 art. 17 par. 1 point ii) of the Regulations, such remuneration under a new employment contract shall be deducted from the residual value of the contract that was terminated early, in the calculation of the amount of compensation for breach of contract (“the mitigated compensation”).

24. In this respect, the Chamber noted that the Claimant had not concluded any new employment contract.

25. Finally, the Chamber addressed the request of the Claimant for the payment of an additional compensation in the amount of EUR 300,000.

26. The Chamber noted that this request was not based on any contractual provision, nor was it substantiated. Therefore, the Dispute Resolution Chamber decided to reject the Claimant’s request for an additional compensation.

27. Consequently, in view of all of the above, the Dispute Resolution Chamber decided that the Respondent must pay to the Claimant the amounts of EUR 221,716.63, plus 5% p.a. interest as from the due dates until the date of effective payment, as outstanding remuneration, and EUR 505,500, plus 5% interest p.a. as from 30 October 2019 until the date of effective payment, as compensation.

28. The DRC concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

29. Furthermore, 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.

30. 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.

31. 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.

32. Finally, the Chamber 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.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Dany Achille Nounkeu Tchounkeu, is partially accepted.

2. The Respondent, Akhisar Belediye Gençlik ve Spor, has to pay to the Claimant outstanding remuneration in the amount of EUR 221,716.63, plus interest at the rate of 5% p.a. until the date of effective payment, as follows :

i. as from 26 April 2019 on the amount of EUR 22,500;

ii. as from 26 May 2019 on the amount of EUR 45,000;

iii. as from 26 August 2019 on the amount of EUR 95,000;

iv. as from 16 June 2019 on the amount of EUR 59,216.63.

3. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of EUR 505,500, plus interest at the rate of 5% p.a. as from 30 October 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 e-mail addresses 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 point 2 and 3 above.

6. The Respondent shall provide evidence of payment of the due amounts plus interest in accordance with point 2 and 3 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).

7. In the event that the amounts due plus interest in accordance with point 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 plus interest 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 aforementioned sums plus interest 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 relating 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.

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

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

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