Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 25 February 2020,
in the following composition:
Om ar Ongaro (Italy ), Chairman
S téphane Burchkalter (France), member
Jérôm e Perlem uter (France), member
on the claim presented by the player,
Jerry Akam inko, Ghana,
represented by Mr Nilo Effori & Ms Cintia R. Nicolau
as Claimant
against the club,
Es kis ehirs por Kulübü, Turkey
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the cas e
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.
Player Jerry Akaminko, Ghana / Club Eskisehirspor Kulübü, Turkey
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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.
Player Jerry Akaminko, Ghana / Club Eskisehirspor Kulübü, Turkey
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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
Player Jerry Akaminko, Ghana / Club Eskisehirspor Kulübü, Turkey
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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.
Cons iderations of the Dis pute Res olution Cham ber
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
Player Jerry Akaminko, Ghana / Club Eskisehirspor Kulübü, Turkey
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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.
Player Jerry Akaminko, Ghana / Club Eskisehirspor Kulübü, Turkey
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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
Player Jerry Akaminko, Ghana / Club Eskisehirspor Kulübü, Turkey
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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.
Player Jerry Akaminko, Ghana / Club Eskisehirspor Kulübü, Turkey
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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.
Player Jerry Akaminko, Ghana / Club Eskisehirspor Kulübü, Turkey
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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 Dis pute Res olution Cham ber
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 [email protected], 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 w ithin 45 day s 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.
Player Jerry Akaminko, Ghana / Club Eskisehirspor Kulübü, Turkey
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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.
*****
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
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Jerry Akaminko, Ghana / Club Eskisehirspor Kulübü, Turkey
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