Labour Disputes
Texto da decisão
REF FPSD-6566
Decision of the
Dispute Resolution Chamber
passed on 13 October 2022
regarding an employment-related dispute concerning the player
Serge Arnaud Aka
BY:
Frans de Weger (the Netherlands), Chairperson
Laurel Vaurasi (Fiji), member
Stefano Sartori (Italy), member
CLAIMANT:
Serge Arnaud Aka, Cotê d’Ivoire
Represented by Sport Makers
RESPONDENT:
Altay Spor Kulubu, Türkiye
Represented by Polat Özen and Ali Sami Er
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I. Facts of the case
1.
On 6 August 2021, the Ivorian player Serge Arnaud Aka (hereinafter the Claimant or the
player) and the Turkish club Altay Spor Kulubu (hereinafter the Respondent or the club)
concluded employment agreement (hereinafter the Employment Agreement), valid from
6 August 2021 until 31 May 2023.
2.
In Clause 4 of the Employment Agreement, the Claimant and the Respondent (jointly
referred to as the parties) agreed upon, inter alia, the following financial terms:
Season 2021/2022
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100.000- EUR net will be paid with signing of this agreement.
100.000- EUR net will be paid on 30 October 2021.
50.000- EUR net will be paid on 30 January 2022.
50.000- EUR net will be paid on 30 March 2022.
300.000,- EUR net will be paid equally as 30.000,-EUR in 10 months on the
following dates:
-30.000,-EUR on 31.08.2021,
-30.000,-EUR on 30.09.2021,
-30.000,-EUR on 31.10.2021,
-30.000,-EUR on 30.11.2021,
-30.000,-EUR on 31.12.2021,
-30.000,-EUR on 31.01.2022,
-30.000,-EUR on 28.02.2022,
-30.000,-EUR on 31.03.2022,
-30.000,-EUR on 30.04.2022,
-30.000,-EUR on 31.05.2022.
Season 2022/2023
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50.000- EUR net will be paid 30 September 2022.
50.000- EUR net will be paid on 30 November 2022.
100.000- EUR net will be paid on 15 January 2023.
50.000- EUR net will be paid on 15 March 2023.
50.000-EUR net will be paid on 15 May 2023.
300.000- EUR net will be paid equally as 30.000,-EUR in 10 months on the
following dates:
-30.000,-EUR on 31.08.2022,
-30.000,-EUR on 30.09.2022,
-30.000,-EUR on 31.10.2022,
-30.000,-EUR on 30.11.2022,
-30.000,-EUR on 31.12.2022,
-30.000,-EUR on31.01.2023,
-30.000,-EUR on 28.02.2023,
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-30.000,-EUR on 31.03.2023,
-30.000,-EUR on 30.04.2023,
-30.000,-EUR on 31.05.2023.
3.
On 2 March 2022, the Claimant sent a default notice to the Respondent, requesting the
amount of EUR 210,000, corresponding to two payments of EUR 150,000 (due on
30 October 2021 and 31 January 2022) and two monthly salaries of EUR 60,000 (January
2022 and February 2022 salary). The Claimant granted Respondent 15 days to comply
with its contractual obligations, however, to no avail.
4.
On 5 April 2022, the Claimant sent a further default notice to the Respondent, requesting
the amount of EUR 290,000, corresponding to two payments of EUR 200,000 (due on
30 October 2021, 31 January 2022 and 30 March 2022) and two monthly salaries of
EUR 90,000 (January 2022 and February 2022 salary, March 2022). The Claimant granted
Respondent 7 days to comply with its contractual obligations, however, to no avail.
5.
On 15 April 2022, the Claimant reiterated its request.
6.
On 20 April 2022, the Respondent replied that the above-mentioned emails landed in the
spam box, and, therefore, the Claimant shall be advised “that any termination regarding
the non-notification will be considering as termination without just cause”.
7.
On 27 April 2022, the Claimant reiterated that the amount of EUR 290,000 remained
outstanding and requested the respective payment within the next five days.
8.
On 5 May 2022, the Claimant terminated the Employment Agreement.
9.
The Claimant did not find a new club since the termination of the contract.
II. Proceedings before FIFA
10. On 29 June 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
11. The requests for relief of the Claimant were the following:
“1) To accept this claim against the Respondent.
2) To consider the Respondent liable for breach and condemn the Respondent to pay to
the Claimant the outstanding amount of EUR 320,000 + 14.75% p.a. with the following
details:
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a. EUR 100,000 net +14.75% p.a., outstanding as of 30 December 2021
b. EUR 50,000 net +14.75% p.a, outstanding as of 31 December 2021
c. EUR 30,000 net +14.75% p.a, outstanding as of 31 January 2022
d. EUR 30,000 net +14.75% p.a, outstanding as of 28 February 2022
e. EUR 50,000 net +14.75% p.a, outstanding as of 30 March 2022
f. EUR 30,000 net +14.75% p.a, outstanding as of 31 March 2022
g. EUR 30,000 net +14.75% p.a, outstanding as of 30 April 2022
3) To condemn the Respondent to pay the Claimant the residual value of the Contract
amounting to EUR 630,000 as from 05 May 2022 plus 14.75% p.a. until the date of the
Club’s payment.
4) To condemn the Respondent to pay the claimant an additional head of compensation
under the specificity of sport as provided for under FIFA RSTP in the amount EUR 300,000
as from 05 May 2022 plus 14.75% p.a. until the date of the Club’s payment.
5) To condemn the Respondent to pay interests at a rate of (14.75%) per annum over
entire amounts requested from the due date of each payment until the date of the
effective payment.
6) TO ban the Respondent from registering any new players, either nationally or
internationally, for two registration periods under article 17, paragraph 4 of the FIFA
RSTP; AND
7) To fix a sum of EUR 20,000 (twenty thousand Euros), to be paid by the Respondent
to the Claimant, to help the payment of its legal fees and costs.
8) As a consequence of the above, to condemn the Respondent to pay all expenses and
costs of the present proceedings, if any.”
12. The Claimant argued that he terminated the Employment Agreement on 5 May 2022 with
just cause, in line with art. 14bis of the Regulations as the number of overdue payables
exceeded two monthly salaries and the respective default notice was served.
13. The Claimant further asserted that the Respondent shall pay a compensation in
accordance with art. 17 of the Regulations, including an additional compensation of EUR
300,000 and an interest of 14.75% p.a. due to the “continuous and grossly negligent breach
of the Contract was always associated with bad faith and persistence.” As an explanation, the
Respondent asserted that “the Discount Rate for Turkey now is 14.75%”).
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b. Position of the Respondent
14. The Respondent rejected the claim of the Claimant, arguing that it “has difficulty in financial
position. The crisis was caused by the Turkish economy's excessive current account deficit and
foreign-currency debt, in combination and it is characterized by the Turkish lira (TRY} plunging
in value, high inflation, rising borrowing costs, and correspondingly rising loan defaults.”
15. Furthermore, the Respondent asserted that the Claimant would not, in any event, be
entitled to the additional compensation based on the facts of the case.
16. In this respect, the Respondent “underlined that many of the notification of the Player has
not reached to the Respondent Club's e-mail” and that the Claimant “intentionally avoided to
achieve a new contract with a different club and to obtain revenues. For those reasons, the
amount of the compensation should be deducted.”
17. Finally, the Respondent argued that “there is no legal basis to apply the rate of 14.75% as
interest.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. 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 29 June 2022 and submitted
for decision on 13 October 2022. Taking into account the wording of art. 34 of the
July 2022 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the
Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the
matter at hand.
19. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b)
of the Regulations on the Status and Transfer of Players (July 2022), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an Ivorian player
and a Turkish club.
20. 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 Players (July 2022), and considering
that the present claim was lodged on 29 June 2022, the June 2022 edition of said
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regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
21. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 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 Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by
or within the Transfer Matching System (TMS).
c. Merits of the dispute
22. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. 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.
i. Main legal discussion and considerations
23. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the dispute concerns a termination of the
Employment Agreement for alleged overdue payables.
24. In this context, the Chamber acknowledged that it its task was to determine if the
termination by the Claimant, which occurred on 5 May 2022, was with just cause.
25. At this point, the Chamber recalled that according to the Claimant, the salaries of
EUR 290,000, i.e. approx. 9.6 monthly salaries, were outstanding at the moment of the
Claimant’s termination.
26. Equally, the DRC recalled the argumentation of the Respondent, that is “has difficulty in
financial position. The crisis was caused by the Turkish economy's excessive current account
deficit and foreign-currency debt, in combination and it is characterized by the Turkish lira
(TRY} plunging in value, high inflation, rising borrowing costs, and correspondingly rising loan
defaults.”
27. At this point, the DRC noted that at hand the Respondent bore the burden of proving that
it indeed complied with the financial terms of the contract concluded between the parties
and that, in this regard, no reasonable justification was presented by the Respondent for
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not having complied with the terms of the contract. In particular, the DRC stressed that
no evidence was provided by the Respondent as to the alleged financial crisis.
28. In view of the above, as the Respondent failed to demonstrate that it paid the Claimant’s
remuneration, the Chamber concluded that the Claimant had just cause to terminate the
contract as approx. 9.6 monthly salaries were outstanding at the moment of the
Claimant’s termination, i.e. such situation no longer feasibly encouraged further
collaboration between the two parties.
ii. Consequences
29. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
30. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player amounts to EUR 290,000.
31. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided 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 290,000 (i.e. 3 times EUR 30,000 plus 2 times EUR 50,000 plus EUR 100,000).
32. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber in this regard, the latter decided to award the Claimant interest
at the rate of 5% p.a. as follows:
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Over the amount of EUR 100,000 as of 30 December 2021 until the date of the
effective payment;
Over the amount of EUR 50,000 as of 31 January 2022 until the date of the effective
payment;
Over the amount of EUR 30,000 as of 1 February 2022 until the date of the effective
payment;
Over the amount of EUR 50,000 as of 31 March 2022 until the date of the effective
payment;
Over the amount of EUR 30,000 as of 1 April 2022 until the date of the effective
payment;
Over the amount of EUR 30,000 as of 1 May 2022 until the date of the effective
payment.
33. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club 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
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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 player 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.
34. In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the pertinent employment contract contained 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 Chamber
established that no such compensation clause was included in the employment contract
at the basis of the matter at stake.
35. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player 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.
36. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of EUR 630,000 (i.e. EUR 30,000 as May 2022 salary plus
EUR 300,000 as four fixed payments during the season 2022/2023 plus EUR 300,000 as
salaries for season 2022/2023) serves as the basis for the determination of the amount
of compensation for breach of contract.
37. In continuation, the Chamber verified as to whether the player 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 the
constant practice of the DRC as well as art. 17 par. 1 lit. ii) of the Regulations, 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.
38. In this respect, the Chamber noted that the player remained unemployed since the
unilateral termination of the contract.
39. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case
the player did not sign any new contract following the termination of his previous
contract, as a general rule, the compensation shall be equal to the residual value of the
contract that was prematurely terminated.
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40. In this respect, the Chamber decided to award the player compensation for breach of
contract in the amount of EUR 630,000 as the residual value of the contract.
41. Lastly, taking into consideration the player’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 29 June 2022 until the date of effective payment.
iii. Compliance with monetary decisions
42. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24
par. 1 and 2 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.
43. In this regard, the DRC 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.
44. Notwithstanding the above, the DRC wished to remark that in accordance with art. 24 par.
3 of the Regulations, the aforementioned consequences may be excluded where the
pertinent FIFA deciding body has already imposed on the same party a sporting sanction
on the basis of article 12bis, 17 or 18quater of the Regulations.
45. In this respect, the Chamber recalled that by means of a decision passed on date
6 September 2022 and notified on 9 September 2022, a transfer ban has been imposed
on the Respondent pursuant to art. 17 par. 4 of the Regulations (i.e., namely in the case
FPSD-6082).
46. Accordingly, the Chamber established that in casu art. 24 par. 2 of the Regulations shall
not apply, insofar as in case the Respondent fails to comply with the decision at hand, the
application of a further ban from registering any new players on top of the one already
being served by the Respondent would be moot and against the spirit of the Regulations,
in particularly the enforcement mechanism established under art. 24 of the Regulations.
47. In view of the above, the DRC decided that if the aforementioned sum plus interest is not
paid within 30 days of notification of this decision, the present matter shall be submitted,
upon request of the Claimant, to the FIFA Disciplinary Committee for its consideration
and formal decision.
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48. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is
attached to the present decision.
d. Costs
49. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were
to be imposed on the parties.
50. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
51. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Serge Arnaud Aka, is partially accepted.
2.
The Respondent, Altay SK, has to pay to the Claimant, the following amount(s):
- EUR 100,000 as outstanding remuneration, plus 5% interest p.a. as of 30 December 2021
until the date of the effective payment;
- EUR 50,000 as outstanding remuneration, plus 5% interest p.a. as of 31 January 2022
until the date of the effective payment;
- EUR 30,000 as outstanding remuneration, plus 5% interest p.a. as of 1 February 2022
until the date of the effective payment;
- EUR 50,000 as outstanding remuneration, plus 5% interest p.a. as of 31 March 2022 until
the date of the effective payment;
- EUR 30,000 as outstanding remuneration, plus 5% interest p.a. as of 1 April 2022 until
the date of the effective payment;
- EUR 30,000 as outstanding remuneration, plus 5% interest p.a. as of 1 May 2022 until the
date of the effective payment;
-iEUR 630,000 as compensation for breach of contract without just cause,
plus 5% interest p.a. as of 29 June 2022 until the date of the effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form within 30 days of the
notification of this decision.
5.
If the aforementioned sum plus interest is not paid within 30 days of notification of this
decision, the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for its consideration and formal decision.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 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 17 of the Procedural Rules).
CONTACT INFORMATION
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