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 24 November 2020
Decision of the
Dispute Resolution Chamber
Passed on 24 November 2020,
regarding an employment-related dispute concerning the player Georges-Kévin
NKOUDOU MBIDA
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Roy Vermeer (Netherlands), member
José Luis Andrade (Portugal), member
CLAIMANT:
GEORGES-KEVIN NKOUDOU MBIDA,
France
Represented by Messrs Rhadamès Killy and Alvyn Gobardhan
RESPONDENT:
BESIKTAS FUTBOL YATIRIMLARI SANAYI VE
TICARET A.S., Turkey
I. FACTS OF THE CASE
1. On 22 August 2019, the French player, Georges-Kévin Nkoudou Mbida (hereinafter:
Claimant) and the Turkish club, BESIKTAS FUTBOL YATIRIMLARI SANAYI VE TICARET A.S.,
(hereinafter: Respondent) concluded an employment contract (hereinafter: the contract),
valid as from the date of signature until 31 May 2023.
2. According to art. 6 of the contract, the Respondent undertook to pay the player the
following fixed salary for the season 2019/2020:
A) “The guaranteed salary of the Player
For the 2019/2020 season the Club agrees to pay the Player a guaranteed net salary of net
1.650.000 EUR payable in 11 equal instalments on the following due dates:
150.000 EUR on 31 August 2019
150.000 EUR on 15 September 2019
150.000 EUR on 30 September 2019
150.000 EUR on 31 October2019
150.000 EUR on 30 November 2019
150.000 EUR on 31 December2019
150.000 EUR on 31 January 2020
150.000 EUR on 28 February 2020
150.000 EUR on 31 March 2020
150.000 EUR on 30 April 2020
150.000 EUR on 31 May 2020”
3. On 31 January 2020, the Claimant put the Respondent in default to pay the total amount
of EUR 350,000 within 15 days, claiming the Respondent had failed to pay him the full
salaries of October, November and December 2019.
4. On 3 February 2020, the Claimant put the Respondent in default to pay, within 15 days,
the total amount of EUR 412,500 corresponding to the amounts as set out in his first default
letter dated 31 January 2020, plus the remainder of November 2019 (only EUR 37,500 paid)
and the full salary of January 2020.
5. On 30 June 2020, the club sent the player a draft settlement agreement for the revision of
the remuneration and asked the player to send back a signed version by 2 July 2020. The
draft settlement agreement reads as follows:
“4. The player explicitly and irrevocable agrees and accepts that, out of his total entitlement
of 495.000 EUR as guaranteed salary for the months March, April and May 2020, he waives
his entitlement to 247.500 EUR which corresponds to half of his remuneration arising from
the employment agreement stipulated in Whereas. 1 for the months March, April and May
2020. Furthermore, the Player explicitly agrees and accepts that the remaining part of 247.500 EUR for the months March, April and May 2020 will be paid by the Club to the
Player on 31 October 2020.
5. The Player agrees and accepts that he will continue to provide his services to the Club
until the new ending date of the 2019/2020 season announced by the TFF and he will not
request any additional payment or remuneration for this additional term.”
6. On 2 July 2020, the Claimant refused the terms of the draft settlement agreement. As such,
the Claimant informed the Respondent that he would only accept any amendment if the
amount of EUR 450,000 corresponding to the salaries of December 2019, January and
February 2020 would be paid. Moreover, the Claimant stated that he would agree to
reschedule the payment of his salaries of March, April and May 2020 until 31 October 2020.
7. On 27 July 2020, the Claimant granted the Respondent 15 days to pay EUR 450,000 as
outstanding salaries for March, April and May 2020.
8. On 11 August 2020, the Respondent replied claiming that on 30 July 2020, it had paid EUR
202,500 as salary and EUR 9,000 as rent allowance for the months of March, April and May
2020. This being said, the Respondent then explained that the situation resulting from the
Covid-19 pandemic and the suspension of the Turkish League affected the club’s finances
and incomes. In this context, the Respondent explained that it was “working strongly and
in good faith to complete the payments to its players as well as you Client” and that “it has
become impossible for our Club to fully comply with its obligations for the months March,
April and May 2020”. The Respondent then referred to the FIFA guidelines on Covid-19 and
to the negotiations held with the Claimant but that “a positive outcome was not reached”.
9. Further to this, the Respondent explained that “on 30 June 2020 a draft settlement
agreement was provided by our Club to Mr. Nkoudou as well as other players to revise the
monetary obligations of our Club for the months of March, April and May 2020 in light of
the damages and loss of income of our Club due to Covid-19 pandemic. This request was
also not accepted”. In this context, the Respondent held that it was left with no other choice
than “to amend the monetary obligations under employment agreement signed between
Mr. Nkoudou and other players, technical staff and employees, whilst taking into
consideration the principles of equal treatment, proportionality and reasonableness”.
10. Therefore, the Respondent stated that a deduction of 15% of the total remuneration for
the 2019/2020 season would be applied with reference to the salaries of March, April and
May 2020. As such, the Respondent informed the Claimant that EUR 247,500 (15% of the
total salary, EUR 1,650,000) had been deducted from his salary, meaning that “the
remaining remuneration of EUR 202,500 as well as his rent allowance of 9.000 EUR for this
period was completed by our Club on 30 July 2020”.
II. PROCEEDINGS BEFORE FIFA
11. On 18 August 2020, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed below.
a. The claim of the Claimant
12. According to the Claimant, the Respondent could not rely on Covid-19 to refrain from its
contractual obligations or to unilaterally amend the contract. This behaviour is illegal and
against FIFA Regulations, which do not allow this, even during the Covid-19 pandemic.
13. The Claimant also considered that art. 12bis is applicable to the matter.
14. In light of the above circumstances, the Claimant requested the following:
EUR 247,500 corresponding to the balance between the amount owed for
March, April and May 2020, i.e. EUR 450,000, minus the amount of EUR
202,500 actually paid by the club,
5% interest on the aforementioned amount,
To order the club to comply with the contract,
EUR 10,000 as the legal costs,
The provisional enforcement of the DRC decision regardless of any appeal to
CAS.
b. Position of the Respondent
15. In its reply to the claim, the Respondent first referred to the tragic circumstances of the
Covid-19 pandemic, in particular following the suspension of Turkish football on 19 March
2020. In this context, the club argued that Covid-19 had been declared a force majeure
situation by FIFA and in Turkey.
16. Since the suspension of the Turkish League, the Respondent tried to negotiate with its
players and staff given that it had no more income. The Respondent argued that this
situation was not due to its fault or negligence.
17. The Respondent further argued that the Claimant had not provided it with any services
during the Covid-19 pandemic.
18. According to the Respondent, the estimated loss since the Covid-19 outbreak was 30%
and it was suggested to players to reduce their salaries by 15%. Despite various meetings
with the Claimant, the latter refused to accept any deduction. In this respect, the
Respondent emphasised that a majority of the players had accepted said deduction. Further
to this, the Claimant also refused the settlement agreement proposed by the Respondent.
19. The Respondent justified the deductions made to the payment in favour of the Claimant by
the fact that it was applied to all players and staff members as it was a necessary step for
the Respondent to continue its activities.
20. Therefore, the Respondent requested the Dispute Resolution Chamber to reject the
Claimant’s claim.
III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a. Competence and applicable legal framework
21. 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 presented to FIFA on 18 August 2020 and submitted
for decision on 24 November 2020. Taking into account the wording of art. 21 of the June
2020 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.
22. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed 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 June 2020), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a French player and
a Turkish club.
23. Subsequently, 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 Player (edition October 2020), and
considering that the present claim was lodged on 18 August 2020, the June 2020 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
24. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
c. Merits of the dispute
25. The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. 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.
26. The DRC also noted that this is a case for outstanding remuneration only and that the
contract is still in force on the date hereof.
i. Main legal discussion and considerations
27. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties disagree on the validity of the unilateral variation
to the contract which the Respondent made when proceeding to the payment of the
Claimant’s salaries for the months of March, April and May 2020.
28. Indeed, it is established that the Respondent applied a deduction of 15% of the Claimant’s
yearly salary, i.e. 15% of EUR 1,650,000 or EUR 247,500, when proceeding to the payment
of the aforementioned salaries. This resulted in a payment of EUR 202,000, which the
Respondent made on 30 July 2020.
29. In this context, the Chamber noted that, in order to justify the unilateral variation, the
Respondent first alleged that there was, at the time, an existing situation of force majeure
in Turkey due to the Covid-19 outbreak.
30. The Respondent also argued that it applied a 15% reduction of the Claimant’s salary since,
given its financial situation, namely a loss of income of 30% since the start of the pandemic,
it could no longer perform the contract as originally anticipated. The Respondent further
highlighted that it made such deduction after it had formally presented the Claimant with
a proposal to amend the contractual terms, which the Claimant refused.
31. Finally, the Respondent emphasised that it had proposed the same salary reduction (in
percentage terms) to its entire squad and that a majority of the players had accepted it.
32. In this context, the Chamber first recalled that, in light of the worldwide Covid-19 outbreak,
FIFA issued a set of guidelines, the Covid-19 Football Regulatory Issues, which aim at
providing appropriate guidance and recommendations to member associations and their
stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and
ensure that any response is harmonised in the common interest. Moreover, on 11 June
2020, FIFA issued an additional document, the FIFA Covid-19 FAQ, which provides
clarification about the most relevant questions in connection with the regulatory
consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters. Those two documents will hereinafter be referred to as “the FIFA Covid-19
guidelines”.
33. In continuation, the Chamber emphasised that the FIFA Covid-19 guidelines aim, in
particular, at tackling the situation regarding agreements which cannot be performed as
the parties originally anticipated. In this regard, the guidelines identify circumstances under
which a unilateral variation of the agreement may be justified. Precisely, the guidelines
mention the following:
“Unilateral decisions to vary agreements will only be recognised where they are made in
accordance with national law or are permissible within CBA structures or another collective
agreement mechanism.
Where:
a. clubs and employees cannot reach an agreement, and
b. national law does not address the situation or collective agreements with a players’ union
are not an option or not applicable,
Unilateral decisions to vary terms and conditions of contracts will only be recognised by
FIFA’s Dispute Resolution Chamber (DRC) or Players’ Status Committee (PSC) where they
were made in good faith, are reasonable and proportionate.
When assessing whether a decision is reasonable, the DRC or the PSC may consider, without
limitation:
a. whether the club had attempted to reach a mutual agreement with its employee(s);
b. the economic situation of the club;
c. the proportionality of any contract amendment;
d. the net income of the employee after contract amendment;
e. whether the decision applied to the entire squad or only specific employees.
Alternatively, all agreements between clubs and employees should be “suspended” during
any suspension of competitions (i.e. suspension of football activities), provided proper
insurance coverage is maintained, and adequate alternative income support arrangements
can be found for employees during the period in question”.
34. Having recalled the contents of the FIFA Covid-19 guidelines, the Chamber determined that
these guidelines are applicable to the present matter, which concerns the unilateral
variation by the Respondent of the contract concluded between the parties. Therefore, the
Chamber started its analysis of the justification behind the Respondent’s unilateral variation
of the contract while bearing in mind the aforementioned guidelines.
35. First, analysing the concept of a situation of force majeure, the Chamber noted that FIFA
did not declare that the Covid-19 outbreak was a force majeure situation in any specific
country or territory, or that any specific employment or transfer agreement was impacted by the concept of force majeure. In other words, in any given dispute, it is for a party
invoking force majeure to establish the existence of said event under the applicable
law/rules as well as the consequences that derive in connection thereto. The analysis of
whether a situation of force majeure existed must be considered on a case-by-case basis,
taking into account all the relevant circumstances.
36. Turning its attention to the evidence on the file in respect of the Respondent’s allegation of
force majeure, the Chamber acknowledged that the Respondent, in this particular matter,
did not submit any form of evidence to support its position that the situation it faced was
to be considered a situation of force majeure.
37. With respect to the Respondent’s unilateral variation of the contract, the Chamber
determined that the Respondent had also not provided any evidence that such decision was
made in accordance with national law. Equally, it is an established fact that the parties did
not find an agreement regarding the unilateral variation. Thus, the Chamber deemed that
it must look into whether the unilateral variation may be considered as justified on other
grounds, in particular but not limited to, the criteria mentioned in par. 33 above.
38. In this regard, the Chamber first noted that, even if the Respondent did not establish a
situation of force majeure, it stands undisputed that COVID-19 caused a suspension of all
competitive football activity in Turkey and that, consequently, the Respondent was
significantly financially affected by this extraordinary event. The DRC also took note of the
Respondent’s indication that the offer made to the entire squad for salaries to be reduced
was a necessary step to allow the club to continue to operate.
39. Against this background, the Chamber was of the opinion that the Respondent’s offer to
vary the agreement, which was extended to the Claimant on 30 June 2020, was made in
good faith and with a view to reach a positive outcome in order to fulfil the club’s financial
obligations towards the Claimant to the extent possible. Such offer concerned the salaries
of March, April and May 2020, i.e. precisely those months where all football activities had
ceased due to the pandemic and where, as a consequence, clubs’ revenues were the most
affected.
40. The Chamber then turned its attention to the specific amount of the reduction of the
Claimant’s salary carried out by the Respondent. The DRC noted that the Respondent had
reduced the salary by an amount equivalent to 15% of the Claimant’s yearly salary. In the
Chamber’s view, in this specific case, a more reasonable and proportionate reduction would
have been a 15% deduction applied only to the months in which the competitions were
suspended, this is, to the months of March, April and May 2020.
41. In view of the above, and bearing in mind the principles of good faith, proportionality and
reasonableness mentioned in the FIFA Covid-19 guidelines as well as the specificities of the
present matter, the Chamber decided that the Claimant could justify a unilateral reduction
of 15% of the salaries due for March, April and May 2020.
42. As a consequence, the Chamber established that the Respondent was entitled to apply a
deduction of 15% over the amount of EUR 450,000 which was originally due in accordance
with the contract for the months of March, April and May 2020. The applicable deduction,
therefore, amounts to EUR 67,500, which implies that the amount due to the Claimant for
the aforementioned months would total EUR 382,500.
43. In conclusion, and considering that the Claimant had acknowledged receipt of EUR 202,500
on 30 July 2020, which the Respondent paid to him in consideration of the salaries of
March, April and May 2020, the Chamber held that a balance of EUR 180,000 is due to the
Claimant.
44. Furthermore, and in accordance with the Claimant’s respective claim, 5% interest p.a. shall
apply to the amount in question. Given the fact that the Claimant did not further specify
his claim for interest, the Chamber decided that such interest shall apply as of the date of
the claim, i.e. 18 August 2020.
ii. Compliance with monetary decisions
45. Finally, taking into account the consideration under number 23. 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.
46. In this regard, the Chamber highlighted 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.
47. Therefore, bearing in mind the above, the 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 communicates the relevant bank details to the Respondent,
provided that the decision is final and binding, 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.
48. The Chamber recalled that the above-mentioned bans 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.
49. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief
made by any of the parties. In particular, the Claimant’s claim for legal costs is rejected in
accordance with art. 18 par. 4 of the Procedural Rules.
IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant, Kévin-Georges Nkoudou Mbida, is partially accepted.
2. The Respondent, Besiktas Futbol Yatirimlari Sanayi ve Ticaret A.S., has to pay to the Claimant,
the amount of EUR 180,000 as outstanding remuneration plus 5% interest p.a. as from 18
August 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:
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