Labour Disputes
Texto da decisão
REF FPSD-5108
Decision of the
Dispute Resolution Chamber
passed on 7 April 2022
regarding an employment-related dispute concerning the player Patrick
Etoga Atchom
BY:
Frans de Weger (Netherlands), Chairperson
Michele Colucci (Italy), member
Jérôme Perlemuter (France), member
CLAIMANT:
Patrick Etoga Atchom, Cameroon
RESPONDENT:
Istanbulspor, Turkey
Represented by Ismet Bumin Kapulluoglu
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I.
Facts of the case
1.
On 10 July 2018, the Cameroonian player Patrick Etoga Atchom (hereinafter: the player) and
the Turkish club Istanbulspor (hereinafter: the club) concluded an employment agreement
(hereinafter: the contract), valid between 10 July 2019 and 31 May 2023, based on which
the player was entitled to receive remuneration as follows:
-
‘the legal minimum wage’;
-
for the season 2018/2019 a total amount of TRY 100,000 as salary and match bonus
payment, payable as follows:
•
•
¼ of the amount of TRY 100,000 (i.e. TRY 25,000) will be paid in two parts:
the legal minimum wage in 12 monthly amounts and the remaining part as an
advance payment;
¾ of the amount of TRY 100,000 (i.e. TRY 75,000) will be paid as match bonus
payment, in equal instalments, divided through 34 games which the club
should play (i.e. TRY 2,205 per match).
-
a ‘per match bonus payment’ corresponding to ‘the full amount, if he starts in the
starting 11, 75% of per match bonus if he joins the match from the bench afterwards,
50% of the per match bonus if he is on the match quad but is not filled and played,
and no bonus if the player is not in the first 18 players’.
-
Fringe benefits as follows: TRY 1,100 in case of a victory and TRY 3,300 ‘Based on the
points that chiefs subjects to physical treatments in order to regain his health
according to the suggestions made by the physicians or dentists of the club on free
charge basis’.
-
As from the season 2019/2020, the player was entitled to a 10% increase of the
match bonuses and fringe benefits, if the club stays in the TFF First Division, and a
50% increase if the clubs promotes to the Super League.
2.
On 22 November 2019, the parties informed the TFF by means of a letter that the phrase ‘per
match bonus receivables’ is replaced with the phrase “conditional per game fee” and that
said ‘salary and conditional per bonus game’ as per 15 August 2019 would be increased from
an amount of TRY 110,000 to an amount of TRY 175,000, as well as that a gross amount of
TRY 25,000 as house rent allowance would be payable by the club.
3.
On 18 June 2021, the player’s work permit was allegedly expired and not renewed by the
club.
4.
On 26 October 2021, the player was excluded from training sessions due to his alleged poor
sporting performance.
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5.
On 1 November 2021, the player complained to the club in writing, via WhatsApp, on his
exclusion from the first team’s squad, to which the team manager of the club, Mr Eren Mert,
replied that he will ‘try to solve the issue’.
6.
On 26 November 2021, the player put the club in default and requested to be integrated in
the first team and to be provided a copy of the disciplinary regulations.
7.
On 3 December 2021, in reply to the player’s letter dated 26 November 2021, the club
provided the player the disciplinary regulations and confirmed that he was not excluded from
the training sessions and that he was always present at the collective training sessions.
8.
On 12 January 2022, the player unilaterally terminated the contract with the club.
9.
On 14 January 2022, the club requested the player to revoke his termination notice and to
return to the club. However, on 7 February 2022, the player refused to return to the club and
requested the bank account details of the club in order to reimburse the payment made to
him.
10. After the unilateral termination of the contract, the player remained unemployed.
II. Proceedings before FIFA
11. On 10 February 2022, the player 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
12. In his claim, the player explains that in the period between August and October 2021, he
played regularly for the club, however that as from October 2021, he was excluded from the
first team, which affected him and his family heavily in a financial way, as he was mainly
depended on the payment of bonuses for matches played.
13. What is more, the player explains that he always had individual training as from 26 October
2021 and provided WhatsApp-messages with the club’s physical trainer in this respect.
14. In addition, the player explains that he was only called as a substitute player for a Cup Match
on 25 December 2021, however did not enter the pitch. Further, the player explains that he
refused to extend his contract with two years under the same conditions, as proposed by the
club.
15. In conclusion, the player deems to have had just cause to terminate the contract and explains
that he is entitled to compensation for breach of contract.
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16. The requests for relief of the player were the following:
•
TRY 48,042 as residual value of the contract (17 months x TRY 2,826) in the period
between 12 January 2022 until 31 May 2013, plus 5% interest p.a. as from 13
January 2022.
b. Position of the club
17. In its reply, the club explains, in relation to the work visa, that the Turkish authorities ‘grant
residence permits to be valid until two months before the expiration date of foreigners
passports in practice’. Since the player’s passport was only valid until 18 August 2021, the
work permit was thus valid until 18 June 2021.
18. What is more, the club explains that the player left Turkey and flew to Cameroon at the end
of the 2020/2021 season and returned to Turkey on 24 June 2021, however was not allowed
to enter, as his passport had expired. After intervention of the club, on 24 June 2021, the
player was granted an emergency travel exception.
19. Further, the club argues that it continuously asked the player to renew his passport, which he
only did on 20 October 2021. Thereafter, the club explains that it immediately acted and
requested the renewal of his residence permit.
20. In addition, the club argues that art. 18 par. 4 of the Regulations is not applicable in the
matter at hand, as it is not a case where the validity of the contract is at stake. Additionally,
the club explains that the player himself caused the inconvenience by not renewing his
passport, and that this however did not affect his ability to play for the club, as the last match
of the 2020/2021 season was played on 9 May 2021 and the first match of the 2021/2022
season on 14 August 2021.
21. What is more, the cub explicitly denies that the player was excluded from training sessions,
and also submits a video, in which it appears that the player was in a collective training session
at the end of October 2021. Also, the club states that the player’s alleged evidence of his
exclusion from the training sessions, i.e. messages to a fitness coach, only prove that he was
in additional fitness sessions.
22. The above follows, according to the club, also from the fact that the player was included in
the roster for a match to be played on 25 December 2021.
23. As to the financial conditions of the contract, the club argues that the player freely agreed
with the initial terms, and that he was additionally also provided a car, as well as yearly
allowance for personal expenses of TRY 25,000. In addition, the club also disagrees that
offering an extension of the contract for two seasons cannot be considered ‘completely
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illogical’ and that it is a valid decision of coaches to leave a player outside the squad for a
specific match.
24. Also, the club explains that there were no arrears in salary payments and that the player could
have expected that he could not play many matches, as he suffered an injury at the beginning
of the contract and was not hired as a regular starter.
25. The club concludes that the player, by terminating his contract on 12 January 2022, was too
fast and thus terminated without just cause and consequently, lodged a counterclaim against
the player.
26. The requests for relief of the Respondent were the following:
•
TRY 6,805.44 (i.e. the salaries paid by the club to the player in the period between
January and February 2022);
•
TRY 10,547.94 as unamortized part of the allowance payment;
•
TRY 48,042 as compensation for breach of contract, plus 5% interest p.a. as from 3
March 2022.
c. Reply to counterclaim of player
27. In his reply to the counterclaim, the player argued that he is only liable to pay the club an
amount of TRY 4,253.20 (the minimum wage corresponding to the month of February 2022).
28. What is more, the player is of the opinion that he did not breach the contract, and that thus
no compensation should be paid by him. In this respect, the player explains that the club
brought him in a dangerous situation by not timely applying for a work permit and also, the
player pointed out that the club excluded him from training with the rest of the team. In this
respect, the player argues that the documentation and statements from other players are not
sufficient evidence.
29. Moreover, the player denies that the amount of TRY 10,547.94 is due by him, as art. 17 of
the FIFA Regulations does not mention specify that unamortized advance fee are payable.
30. In conclusion, the player deems that the amount of TRY 25,000 are housing allowances and
thus not the advance payment.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
31. 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 10 February 2022 and submitted for
decision on 7 April 2022. Taking into account the wording of art. 34 of the October 2021
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.
32. 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 (March 2022 edition), 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 Cameroonian player
and a Turkish club.
33. 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 (March 2022 edition), and
considering that the present claim was lodged on 10 February 2022, the August 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
34. 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
35. 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.
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i. Main legal discussion and considerations
36. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute whether the player was effectively
excluded from the first team of the club as from 26 October 2021 and the termination of the
contract on 12 January 2022 by the player was made with or without just cause.
37. In this context, the Chamber acknowledged that it its task was to determine whether based
on the information on file, it can indeed be concluded that the player was excluded from the
first team of the club as from 26 October 2021, whether this circumstance could lead the
player to validly terminate his contract and what the consequences of said termination would
be.
38. In view of the foregoing, the Chamber first of all referred to art. 13 par. 5 of the Procedural
Rules (October 2021 edition), according to which a party that asserts a fact has the burden
of proving it, and went on to analyse the documentation provided by the parties in support
of their allegations.
39. Moreover, the Chamber recalled its long-standing jurisprudence, according to which only a
breach or misconduct which is of a certain severity justifies the termination of a contract
without prior warning. In other words, only when there are objective criteria which do not
reasonably permit to expect the continuation of the employment relationship between the
parties, a contract may be terminated prematurely. Hence, if there are more lenient measures
which can be taken in order for an employer to assure the employee’s fulfilment of his
contractual duties, such measures must be taken before terminating an employment contract.
A premature termination of an employment contract can only be an ultima ratio.
40. With the foregoing principles in mind, the Chamber deemed that it was up to the player to
prove that he was indeed excluded from the first team of the club for a considerable period
of time and that such circumstance gave him just cause to terminate the contract.
41. Entering into the substance of the matter at hand, the members of the Chamber noted that
the player, while arguing that he was excluded from the first team merely referred to an
alleged WhatsApp conversation with the fitness coach, which would demonstrate that he
was excluded from the first team and was forced to train alone with the fitness coach. The
members of the Chamber were unanimous in their opinion that these conversations cannot
be considered as sufficient evidence to conclude that the player was indeed excluded from
the training sessions with the first team. The content of said conversation is rather general
and does not hold any reference to the training sessions of the first team of the club.
42. What is more, the members of the Chamber noted that the player’s allegations are strongly
contested by the club, which provided several pictures and a movie, in which the player is
allegedly taking part in the training sessions, as well as several witness statements. Also, the
club indicated that the fitness sessions were to be considered as additional training sessions,
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next to the regular training sessions the player was participating in and that the player was,
25 December 2021, on the bench for a match against Bandirmaspor, which proves that he
was not excluded from the first team.
43. Having analysed the foregoing elements, the members of the Chamber noted that from the
information on file, it could be established that the player was indeed, after the end of
October 2021, no longer selected for the match squad of the club’s first team for a period of
almost two months, but that on 25 December 2021, the player was still on the bench for a
match against Bandirmaspor. Said circumstance is not contested by the player, which even
explicitly confirmed that he was indeed on the bench in the match against Bandirmaspor.
44. The members of the Chamber understood and had some sympathy for the players’
explanations that was in a difficult situation as he was not playing in many matches and –
given the contents of the contract and his financial remuneration, which was for a major part
dependent on the number of matches he played - thus was entitled to less remuneration, but
also pointed out that the contract was concluded of the player’s own free will. Moreover,
the choice to include a player in the first team is in principle a decision in which the coach of
the club has a certain decree of freedom.
45. With the above in mind and after having carefully analysed the parties’ submissions, the
Chamber concluded that the player’s allegations that he was removed from the first team of
the club are not backed by sufficient documentary evidence absence. Therefore, the Chamber
concluded that the termination of the contract by the player on 12 January 2022 cannot be
considered as an ultima ratio measure, which would make that the termination of the
contract was justified. As a result, the Chamber decided that the player is liable for the
consequences of such breach of contract.
ii. Consequences
46. 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 player.
47. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the club by the player 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 player under the existing contract and/or the new
contract, the time remaining on the existing contract up to a maximum of five years, the fees
and expenses paid or incurred by the former club (amortised over the term of the contract)
and depending on whether the contractual breach falls within the protected period.
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48. 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.
49. 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.
50. As a consequence, the Chamber determined that the amount of compensation payable by
the player to the club 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 nonexhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
51. Bearing in mind the foregoing as well as the claim of the club, the Chamber proceeded with
the calculation of the monies payable to the player under the terms of the contract until its
term. Consequently, the Chamber concluded that the amount of TRY 48,042 (i.e. 17 monthly
salaries of TRY 2,826) serves as the basis for the determination of the amount of
compensation for breach of contract.
52. In continuation, the Chamber verified whether the player had signed an employment contract
with another club during the relevant period of time. According to the constant practice of
the Chamber as well as art. 17 par. 1 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 due by a player to his former club. In particular, the
Chamber explained that its standard practice is to calculate the average between the player’s
remuneration with his former club and his remuneration with the new club, for the exact
same period of time comprised between the early termination of the employment contract
with the old club and the original expiry date of such contract.
53. In this respect, the Chamber noted that the player remained unemployed since the unilateral
termination of the contract.
54. Thus, the Chamber concluded that only factor to be taking into account to establish the
economic value of the players’ services in relation to the compensation that should be payable
to the club, is the remuneration of the player’s contract with the club, i.e. the amount of TRY
48,042.
55. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the player must pay the amount of TRY 48,042
to the club, which was to be considered a reasonable and justified amount of compensation
for breach of contract in the present matter.
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56. Lastly, taking into consideration the club’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the club interest on said compensation
at the rate of 5% p.a. as of 3 March 2022 until the date of effective payment.
57. What is more, the members of the Chamber decided to reject the claim for the reimbursement
of the salaries paid to the player in the amount of TRY 6,805.44, as these were paid during
the period in which the contract was validly in force and during which the player rendered his
services to the club and are therefore not subject to a potential reimbursement.
58. Additionally, also the request to be awarded the so-called unamortized part of the allowance
payment is to be rejected, as said amount was contractually agreed between the parties to
be paid as a lump-sum, which circumstance can – under the present circumstances of the
matter at hand and because it was the club which had drafted the contract - not be upheld
against the player.
59. In conclusion, the members of the Chamber decided to reject the claim of the player and to
partially accept the counterclaim of the club.
iii. Compliance with monetary decisions
60.
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.
61.
In this regard, the Chamber highlighted that, against players, the consequence of the
failure to pay the relevant amounts in due time shall consist of a restriction on playing in
official matches up until the due amounts are paid. The overall maximum duration of the
restriction shall be of up to six months.
62.
Therefore, bearing in mind the above, the Chamber decided that the player must pay the
full amount due (including all applicable interest) to the club within 45 days of notification
of the decision, failing which, at the request of the creditor, a restriction on playing in
official matches for the maximum duration of six months shall become immediately
effective on the player in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
63.
The player shall make full payment (including all applicable interest) to the bank account
provided by the club in the Bank Account Registration Form, which is attached to the
present decision.
64.
The Chamber 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. 24 par.
8 of the Regulations.
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d. Costs
65. 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.
66. 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.
67. 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 / Counter-Respondent, Patrick Etoga Atchom, is rejected.
2.
The claim of the Respondent / Counter-Claimant, Istanbulspor, is partially accepted.
3.
The Claimant / Counter-Respondent has to pay to the Respondent / Counter-Claimant, the
following amount:
- TRY 48,042 as compensation for breach of contract without just cause, plus 5% interest
p.a. as from 3 March 2022 until the date of effective payment.
4.
Any further claims of the Respondent / Counter-Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Claimant / Counter-Respondent shall be restricted from playing in official matches
up until the due amounts are paid. The overall maximum duration of the restriction
shall be of up to six months.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
7. The consequences shall only be enforced at the request of the Respondent / CounterClaimant in accordance with article 24 par. 7 and 8 and art. 25 of the Regulations on the
Status and Transfer of Players.
8. 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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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