Labour Disputes
Texto da decisão
REF FPSD-6082
Decision of the
Dispute Resolution Chamber
passed on 06 September 2022
regarding an employment-related dispute concerning the player Daouda
Karamoko Bamba
COMPOSITION:
ONGARO Omar (Italy), Deputy Chairperson
BOEYKENS Stijn (Belgium), member
DE JONG Daan (The Netherlands), member
CLAIMANT:
Daouda Karamoko Bamba, Cote d’Ivoire
Represented by Ismet Bumin
RESPONDENT:
Altay SK, Türkiye
Represented by Ercan Sevdimbas
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REF FPSD-6082
I. Facts of the case
1.
On 27 June 2021, the Ivorian player Daouda Karamoko Bamba (hereinafter: the Claimant)
and the Turkish club Altay SK (hereinafter: the Respondent) concluded an employment
contract (hereinafter: the Contract) with the starting date of 27 July 2021 and expiry date
of 31 May 2023.
2.
Clause 3 of the Contract reads as follows:
“For the 2021/2022 season:
50.000,-EUR net will be paid in cash at the signature of the official contract.
50.000,-EUR net will be paid on 15 OCTOBER 2021
50.000,-EUR net will be paid on 15 JANUARY 2022
200.000,-EUR net will be paid equally as 20.000,-EUR in 10 months on the following dates:
- 20.000,- EUR on 31.08.2021,
- 20.000,- EUR on 30.09.2021,
- 20.000,- EUR on 31.10.2021,
- 20.000,- EUR on 30.11.2021,
- 20.000,- EUR on 31.12.2021,
- 20.000,- EUR on 31.01.2022,
- 20.000,- EUR on 28.02.2022,
- 20.000,- EUR on 31.03.2022,
- 20.000,- EUR on 30.04.2022,
- 20.000,- EUR on 31.05.2022,
Bonus payment of 50,000 euros will be paid to the player at the end of the football season,
provided that the player plays minimum 30 minutes in each of the 20 official Super League
matches in the 2021-2022 football season at the end of the football season.
For the 2022/2023 season:
50.000,-EUR net will be paid on 15 OCTOBER 2022.
50.000,-EUR net will be paid on 15 DECEMBER 2022
50.000,-EUR net will be paid on 20 FEBRUARY 2023
250.000,-EUR net will be paid equally as 25.000,-EUR in 10 months on the following dates;
- 25.000,- EUR on 31.08.2022,
- 25.000,- EUR on 30.09.2022,
- 25.000,- EUR on 31.10.2022,
- 25.000,- EUR on 30.11.2022,
- 25.000,- EUR on 31.12.2022,
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- 25.000,- EUR on 31.01.2023,
- 25.000,- EUR on 28.02.2023,
- 25.000,- EUR on 31.03.2023,
- 25.000,-EUR on 30.04.2023,
- 25.000,- EUR on 31.05.2023,
(…)
ALTAY and the player has a mutual right to prolong the contract for the season 2023-2024.
This has to be done by either the player or the club with written notification to the Turkish
Football Federation within 30 days before the end of the 2022/2023 football season. If the
option is used and the contract covers the 2023-2024 season, the financial conditions are as
follows;
For the 2023/2024 season:
50.000,-EUR net will be paid on 15 OCTOBER 2023.
50.000,-EUR net will be paid on 15 DECEMBER 2023
50.000,-EUR net will be paid on 20 FEBRUARY 2024
50.000,-EUR net will be paid on 20 April 2024
250.000,-EUR net will be paid equally as 25.000,-EUR in 10 months on the following dates;
- 25.000,- EUR on 31.08.2023,
- 25.000,-EUR on 30.09.2023
- 25.000,- EUR on 31.10.2023
- 25.000,- EUR on 30.11.2023,
- 25.000,- EUR on 31.12.2023,
- 25.000,- EUR on 31.01.2024,
- 25.000,- EUR on 28.02.2024,
- 25.000,- EUR on 31.03.2024,
- 25.000,- EUR on 30.04.2024,
- 25.000,- EUR on 31.05.2024”
3.
On 19 January 2022, the Claimant put the Respondent in default requesting the payment
of EUR 95,000 within 15 days.
4.
On 4 March 2022, the Claimant put the Respondent in default requesting the payment of
EUR 65,000 within 15 days.
5.
On 8 April 2022, the Claimant put the Respondent in default requesting the payment of
EUR 65,000 within 15 days. The Respondent was notified that in case of non-payment of
the requested amounts within the 15-day deadline, the contract would be terminated in
accordance with Art. 14bis.
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6.
On 28 April 2022, the Claimant terminated the employment contract adducing just cause.
7.
The Claimant informed that he remains unemployed.
II. Proceedings before FIFA
8.
On 17 May 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
9.
According to the Claimant, from the start of the Contract until 8 April 2022, he was entitled
to receive the total remuneration of EUR 310,000. However, the Respondent had solely
paid EUR 245,000
10. The Claimant submits that the Club failed to pay the residual partial amount of the third
instalment of the down payment in the amount of EUR 5,000 and three full salaries, i.e.
of January, February and March 2022.
11. Thus, the Claimant submits he terminated the Contract with just cause on 28 April 2022.
12. The Claimant sustains that he became entitled to a performance bonus of EUR 50,000 on
16 January 2022, when it played against the Aytemiz Alanyaspor the 20th official league
match in which he played for at least 30 minutes.
13. Based on the above, the Claimant states that as of the date of the claim, the Player has
outstanding remuneration in the total amount of 133.666,67.-Euro net, calculated as
follows:
14. Regarding the residual value of the Contract, the Claimant refers to the right to both
Parties to extend the contract by one additional season and until 31 May 2024.
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15. The Claimant submits he was a regular starter, and the Club was satisfied with the Player’s
performance and “most likely would extend the contract for the 2023/2024 season.”
16. The Claimant further argues that “the Player also could extend the contract, without the need
for the agreement, or even consent of the Club.”
17. Based on the above, the Claimant deems he is entitled to the following compensation:
18. The Claimant filed the following requests for relief:
a. to admit the present claim,
b. to declare that the termination of the employment contract by the Claimant is with just
cause,
c. to order the Respondent to pay to the Claimant the total amount of 133.666,67.-Euro net as
outstanding remuneration alongside with its interests in the rate of 5% p.a. to accrue on each
instalment, starting from the respective due date and until the date of effective payment and
d. to declare that the termination of the employment contract by the Claimant is termination
with just cause and to order the Respondent to pay to the Claimant the total amount of
871.333,33.-Euro net, or in subsidiary order the amount of 421.333,33.-Euro net, as
compensation for breach of contract alongside with its interest in the rate of 5% p.a. to be
applied from the date of termination, i.e. 28 April 2022, and until the date of effective payment.
b. Position of the Respondent
19. Despite being invited to provide its position, the Respondent failed to reply to FIFA within
the given deadline.
20. On 9 June 2022, FIFA general secretariat closed the investigation in the matter at hand.
21. On 27 June 2022, the Respondent filed a submission.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. 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 17 May 2022 and submitted
for decision on 6 September 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.
23. 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 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 an Ivorian player
and a Turkish club.
24. 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 edition) and
considering that the present claim was lodged on 17 May 2022, the March 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
25. 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
26. 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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27. On a preliminary note, the Chamber found that the submission filed by the Respondent
on 27 June 2022 cannot be taken into account by the Chamber. In support of this view,
the Chamber relied on the clear wording of art. 23 par. 1 of the Procedural Rules,
according to which the parties may not supplement or amend their submissions or
request for relief after the closure of the investigation by FIFA general secretariat. The
Chamber recalled to this end that on 9 June 2022, the FIFA general secretariat had closed
the investigation-phase of the matter in accordance with art. 23 of the Procedural Rules.
i. Main legal discussion and considerations
28. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that, based on the aforementioned considerations,
the claim remain uncontested by the Respondent.
29. Moreover, the Chamber noted that the core of the dispute lays on the justice of the early
termination of the contract by the Claimant, based on the alleged non-payment of certain
financial obligations by the Respondent as per the Contract, in accordance with art. 14bis
of the Regulations.
30. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of
the Regulations had in fact been fulfilled.
31. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly
salaries on their due dates, the player will be deemed to have a just cause to terminate
his contract, provided that he has put the debtor club in default in writing and has granted
a deadline of at least 15 days for the debtor club to fully comply with its financial
obligation(s).
32. The Chamber noted that the Claimant claims not having received his remuneration
corresponding to the months of January to April 2022. Furthermore, the Chamber noted
that the Claimant has provided written evidence of having put the Respondent in default
on 8 April 2022, i.e. at least 15 days before unilaterally terminating the contract on 28
April 2022.
33. The Chamber also noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded
between the parties. Nonetheless, considering that the claim remains undisputed as per
the aforementioned considerations, the Respondent had not proven the payment of the
amounts claimed as outstanding by the Claimant.
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34. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate
the contract, based on art. 14bis of the Regulations.
ii. Consequences
35. 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.
36. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to 3 monthly
salaries under the contract from January to March 2022, amounting to EUR 60,000.
37. Furthermore, the Chamber noted that a partial down payment of EUR 5,000 was also
claimed as outstanding by the Claimant. The Chamber decided that the Claimant was
therefore entitled to the said amount.
38. The Chamber observed that the Claimant requests as outstanding a performance bonus
for having made 20 appearances for the Respondent in accordance with Clause 3 of the
Contract. In this regard, the Chamber underlined that based on the clear wording of the
said clause, the said bonus payment was due “at the end of the football season”. Thus, the
Chamber found that the requested amount had not fallen due yet and it shall be awarded
as part of the compensation due to the Claimant.
39. 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 65,000.
40. 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. on the outstanding amounts as from the respective due dates until
the date of effective payment.
41. 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
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
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maximum of five years, and depending on whether the contractual breach falls within the
protected period.
42. 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.
43. 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.
44. 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.
45. At this point, the Chamber deemed relevant to refer to the Claimant’s arguments
regarding the option to extend the Contract.
46. In this regard, the Chamber observed that the relevant clause reads as follows:
“ALTAY and the player has a mutual right to prolong the contract for the season 2023-2024.
This has to be done by either the player or the club with written notification to the Turkish
Football Federation within 30 days before the end of the 2022/2023 football season. If the
option is used and the contract covers the 2023-2024 season, the financial conditions are as
follows (…)”
47. The Chamber found that from the wording of the clause, it could be observed that in
order to exercise the option, the party wishing to extend the Contract would have to send
a “written notification to the Turkish Football Federation within 30 days before the end of the
2022/2023 football season”.
48. The Chamber underscored that since the Claimant decided to terminate the Contract, he
was no longer in a position to exercise the option he was indeed entitled to. Thus, the
Chamber determined that the option year (season 2023/2024) could not be taken into
account for the calculation of the residual value.
49. Consequently, the Chamber concluded that the amount of EUR 490,000 (i.e. the months
of April-May 2022, the appearance bonus of EUR 50,000 and the salary for the season
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2022/2023) serves as the basis for the determination of the amount of compensation for
breach of contract.
50. 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.
51. In this respect, the Chamber noted that the player remained unemployed since the
unilateral termination of the contract.
52. 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.
53. In this respect, the Chamber decided to award the player compensation for breach of
contract in the amount of EUR 490,000, i.e. the salaries from April 2022 – June 2023 and
the appearance bonus of EUR 50,000, as the residual value of the contract.
54. 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 the date of claim (i.e. 17 May 2022) until the date
of effective payment.
iii. Sporting sanctions
55. The Chamber noted that the Respondent had also on several occasions in the recent past
been held liable by the Football Tribunal for the early termination of the employment
contracts without just cause, namely in the following cases:
-
FPSD-3301. DRC decision of 12 September 2021
FPSD-4703. DRC decision of 10 March 2022
FPSD-6135. DRC decision of 21 July 2022
56. Under article 17 par. 4 of the Regulations, in addition to the obligation to pay
compensation, sporting sanctions shall be imposed on any club found to be in breach of
contract or found to be inducing a breach of contract during the protected period.
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57. As to the protected period, this is defined in the Regulations as “a period of three entire
seasons or three years, whichever comes first, following the entry into force of a contract,
where such contract is concluded prior to the 28th birthday of the professional, or two entire
seasons or two years, whichever comes first, following the entry into force of a contract, where
such contract is concluded after the 28th birthday of the professional”.
58. In the present case, the player was born on 5 March 1995 and signed the contract with
the Respondent club on 27 June 2021, the protected period would last 3 entire seasons
or 3 years (whichever came first), considering that the contract was signed prior to the
28th birthday of the player.
59. Accordingly, considering that the breach in the case at hand occurred on 28 April 2022
and that -at that moment in time- neither 3 entire seasons nor 3 years had elapsed since
the date on which the contractual relationship started, by virtue of art. 17 par. 4 of the
Regulations, the Chamber decided that the Respondent shall be banned from registering
any new players, either nationally or internationally, for the two next entire and
consecutive registration periods following the notification of the present decision.
60. For the sake of completeness, the Chamber recalled that in accordance with article 24
par. 3 lit. a) of the Regulations, the consequences for failure to pay relevant amounts in
due time may be excluded where the Football Tribunal has imposed a sporting sanction
on the basis of article 17 in the same case. Consequently, the Chamber confirmed that
the consequences for failure to pay relevant amounts in due time envisaged by art. 24 of
the Regulations were excluded in the present matter, and that should the Respondent fail
to timely comply with this decision, it would be for the FIFA Disciplinary Committee to
adopt the necessary measures in accordance with the FIFA Disciplinary Code.
d. Costs
61. 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.
62. 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.
63. 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, Daouda Karamoko Bamba, is partially accepted.
2.
The Respondent, Altay SK, has to pay to the Claimant, the following amounts:
- EUR 65,000 as outstanding remuneration plus 5% interest p.a. as follows:
On EUR 5,000 from 16 January 2022 until the date of effective payment.
On EUR 20,000 from 1 February 2022 until the date of effective payment.
On EUR 20,000 from 1 March 2022 until the date of effective payment.
On EUR 20,000 from 1 April 2022 until the date of effective payment.
- EUR 490,000 as compensation for breach of contract without just cause plus 5%
interest p.a. from 17 May 2022 until the date of 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.
5.
The Respondent shall be banned from registering any new players, either nationally or
internationally, for the two next entire and consecutive registration periods following the
notification of the present decision.
6.
If full payment (including all applicable interest) is not made within 45 days of notification
of this decision, the present matter shall be submitted, upon request of the Claimant, to
the FIFA Disciplinary Committee:
7. 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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