Labour Disputes
Texto da decisão
REF FPSD-5269
Decision of the
Dispute Resolution Chamber
passed on 4 August 2022
regarding an employment-related dispute concerning the player
Emmanuel Doku
BY:
Omar Ongaro (Italy), Deputy Chairperson
Laurel Vaurasi (Fiji), member
Khadija Timera (Senegal), member
CLAIMANT:
Emmanuel Doku, Ghana
Represented by Mr Jake Cohen
RESPONDENT:
MKE Ankaragucu SK, Turkey
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REF FPSD-5269
I. Facts of the case
1.
In October 2020, the parties allegedly concluded an employment contract, whereby
the club undertook to pay to the player, inter alia, a monthly salary of EUR 1,000 as
from October 2020 until May 2022 with an extension to extend its duration until the
end of the 2022/2023 season (as per the information contained in the TMS, the player
was registered with the Respondent as an amateur player and was not entitled to any
remuneration).
2.
In connection with the option to extend the contract, clause 3 thereof reads as
follows: “If the player plays in 20 league matches or more league matches in the 20212022- football season, the parties agree and undertake that the contract will continue
in the 2022-2023 season with the following conditions”.
3.
In particular, clause 3 of the contract provides the player’s fixed remuneration, as
follows:
-
For the season 2020/2021: EUR 9,000 divided in 9 monthly instalments of EUR
1,000 each, payable as from October 2020 until June 2021;
-
For the season 2021/2022: EUR 9,000 divided in 9 monthly instalments of EUR
1,000 each, payable as from September 2021 until May 2022;
-
For the season 2022/2023: EUR 9,000 divided in 9 monthly instalments of EUR
1,000 each, payable as from September 2022 until May 2023.
4.
Clause 4 lit b) of the contract reads as follows: “The club is obliged to b) Take care of
player's health and take necessary measures during matches, trainings, camps and
travels pursuant to the articles on diseases and injuries”.
5.
As per the Claimant, the contract would further provide the player’s entitlement to
receive “housing, meals, travel costs to and from training, and flights to and from the
Player’s home country of Ghana”.
6.
On 1, 4, 6 and 7 January 2021, the player put the club in default of payment concerning
the salary of December 2020 in the amount of EUR 1,000.
7.
On 11 January 2021, the club made a payment of EUR 1,000 to the player.
8.
By means of his letter dated 3 February 2021, the player put the club in default of
payment concerning the salary of January 2021.
9.
On 25 February 2021, the club paid the amount of EUR 1,000 to the player.
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10. At the beginning of March 2021, the player requested the club to provide him with a
copy of the contract; however, to no avail.
11. On 15 March 2021, the club made a payment of EUR 1,000 to the player.
12. In May 2021, the player put the club in default of payment in 3 occasions, concerning
his salaries of March and April 2021; however to no avail.
13. On 18 May 2021, the player requested the club to provide him with a flight ticket to
return to his home country; however, to no avail.
14. On 2 June 2021, the player requested his outstanding salary from the club, which
representative replied the following: “No money in the club bro”.
15. On 6 July 2021, the club sent a message to the player, with the following content: “Bro
we already talked with him and he said as you know this season we must have less
foreign players in squad because of new foreign players limit so we also have more
foreigners than limit. That’s why he can’t keep you in the squad.”
16. On 17 August 2021, the club sent another message to the club, inter alia, the
following: “Bro the club doesn’t want to do anything with you. And they also told me
don’t say anything about Emmanuel. If he wants, he can sue us”.
17. On 8 September 2021, the player -now via his legal representative- put the club in
default of payment concerning his outstanding salaries, thereby granting the club a
17 days’ deadline to remedy the default; however, to no avail.
18. The player has not signed any new contract with a third club during the overlapping
period.
II. Proceedings before FIFA
a. Position of the Claimant
19. On 25 February 2022, the player lodged a claim against the club before FIFA,
requesting to be awarded outstanding remuneration and compensation for damages
in the total amount of EUR 355,207, plus Interest as from 31 March 2021, broken
down by the Claimant as follows:
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Outstanding remuneration: EUR 49,207
-
-
-
EUR 23,500 as outstanding salaries;
“EUR 14,500 in compensation for the proper housing that the Club agreed to
and failed to provide (reflecting a modest sum of EUR 500 per month over
the term of the Contract”;
“EUR 691.25 in reimbursement for the Player’s flight to Ghana (reflecting the
appropriate conversion rate of TRY to EUR from 21 May 2021)”;
EUR 3,346 in reimbursement for travel costs to and from the training ground
(reflecting a EUR 14 per day cost for the dates the Player was with the Club
in Turkey)”;
“EUR 7,170 in reimbursement for the costs of meals (reflecting a modest EUR
30 per day cost for the dates the Player was with the Club in Turkey)”.
Compensation for damages: EUR 300,000
-
“EUR 300,000 in compensation as a result of the permanent damage to his
career as well as costs to treat the ongoing mental health issues he has
suffered as a result of the Club’s actions towards him”.
Additional compensation: EUR 6,000
-
“EUR 6,000 in Additional Compensation, corresponding to six monthly
salaries, pursuant to Article 17.1(ii) of the FIFA RSTP”.
20. Subsidiary to his main request for relief, the Claimant requested the DRC to award
him “the appropriate compensation under Article 17.1 of the FIFA RSTP, together with
corresponding interest at a rate of five percent (5%) per annum, starting from 31
March 2021”.
21. Also subsidiary to the aforementioned request, the Claimant requested the club be
ordered to pay “the appropriate compensation under Article 12bis of the FIFA RSTP,
together with corresponding interest at a rate of five percent (5%) per annum, starting
from 31 March 2021”.
22. In his claim, the Claimant highlighted that, prior to the conclusion of the employment
contract, on 3 September 2020, the club had sent an offer to the player inviting him
for a trial at the club, with the following content: “If the player is successful, we offer
to contract with the conditions below. 25.000 EUR Transfer Fee 10.000 EUR x 10 =
100.000 EUR salary; 30.000 EUR commission and home rental and car rental
assistance 2 round-trip flight tickets. Due to the transfer limits imposed by TFF, we
want to conduct our meetings face to face”.
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23. The Claimant explained that despite having validly entered into an employment
contract with the club, the latter failed to provide him with a copy thereof and to
respect its financial obligations towards the player and failed to reply to his default
notices.
24. The player argues that, on 21 May 2021, he “was forced to make his own
arrangements for his flight back home to Ghana. The total cost was TRY 6,912.50.21”.
25. The player further stressed that the club never provided him with proper housing,
meals or travel to and from training sessions. In connection with the state in which
the player lived in Turkey, the latter explained that he “was permanently placed in the
stadium, alone in a tiny room. No other members of the first team lived in the
stadium. The only time any other players slept in the stadium was on the night before
match days. The Player was not provided with any kitchen facilities and was unable to
prepare the nutritious and healthy meals that are necessary for professional athletes,
and indeed, anyone, regardless of their profession, who is striving to live a healthy
life”.
26. As for the travel expenses to attend the training sessions, the Claimant underscored
that he “was forced to pay EUR 14 per day in order to travel back and forth to the
training ground (EUR 7 each way). Despite agreeing to do so, the Club never provided
travel for the Player or reimbursed his costs”.
27. In connection with the amount requested as compensation for damages, the player
held that “there is no monetary amount that can justify the damage caused to him by
the Club, but at least this amount […] will allow the Player to undergo proper mental
health treatment”.
28. Moreover, the player referred to the messages sent by the club on 6 July and 17
August 2021 and argued that, by sending those messages informing the player that
the club was no longer interested in his services, the club unilaterally terminated the
contract without just cause.
b. Position of the Respondent
29. On its part, the club admitted having sent the offer to the player but argued that the
performance of the player during the trial period was not satisfactory enough and,
consequently, the parties concluded a different contract, i.e. the contract, since the
club “wanted to give a chance to the player for a longer period as a reserve player as
he is young and he might have potential in the following years”.
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30. The club also argued that the player, before joining the club of the Respondent, was
an amateur player and it was the club the one that gave him the chance to become a
professional player.
31. Moreover, the club rejected the argumentation of the player regarding his entitlement
to receive housing allowance, meals, travel costs to attend trainings and flight tickets
and argued that no contractual clause foresees the player’s entitlement thereto.
However, argued the club, it provided the player with accommodation at the club’s
facilities and meals.
32. Furthermore, the club argued that it was relegated at the end of the 2020/2021
season and, therefore, it underwent a situation of financial distress that prevented it
from paying the salaries of the players and the staff of the club. In this context, the
club explained that its quota to register foreign players decreased upon its relegation,
which led the club to terminate the contract with other international players. In this
respect, the club argued that it was open to release the player or transfer him to
another club for free, but the player “always pushed the club to be included in the
team” but, since the club had a limited quota to sign international players, the club
admitted not having counted on the player’s services for the season 2021/2022.
33. What is more, the club disputed the allegations of the players regarding the
termination of the contract. The club held that the messages sent to the player on 6
July and 17 August 2021 did not trigger the termination of the contract and that the
player failed to put the club in default of payment in compliance with the
requirements of art. 14bis of the Regulations. However, the club admitted not having
paid 5 instalments of the player’s monthly remuneration.
34. The club wished to highlight that neither the player nor the club sent any termination
notice and, hence, the contract cannot be deemed as terminated with just cause by
the player or without just cause by the club. In this context, the club argued that the
player can only be entitled to his outstanding salaries, but not to any compensation
“as there is no termination by any party”.
35. The Respondent requested the claim of the Claimant be rejected or, subsidiary,
should the DRC consider that the player terminated the contract with just cause or
that the club terminated it without just cause, the Respondent requested the
allegations of the Claimant to receive the amount of EUR 300,000 as compensation
for damages be rejected.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
36. 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 25 February
2022 and submitted for decision on 4 August 2022. Taking into account the wording
of art. 34 of the June 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.
37. 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 2021 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
Ghanaian player and a Turkish club.
38. Subsequently, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that, in accordance with art.
26 par. 1 and 2 of the Regulations on the Status and Transfer of Player (July 2022
edition) and considering that the present claim was lodged on 25 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
39. 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
40. 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
41. The foregoing having been established, the Chamber moved to the substance of the
matter and recalled that the Claimant is requesting to be awarded outstanding
remuneration and compensation for damages in the total amount of EUR 355,207,
plus Interest as from 31 March 2021. The Claimant argues that the club unilaterally
terminated the contract without just cause when it sent the messages dated 6 July
and 17 August 2021.
42. Thus, the Claimant deems being entitled to his outstanding moneys (salaries, flight
tickets, meals and accommodation allowances), as well as to a compensation for
damages and an “additional compensation”.
43. On its part, the club rejects the arguments of the Claimant concerning the termination
of the contract and argues that the club gave an opportunity to the player, who was
an amateur before, provided the latter with the appropriate accommodation and
meals and only failed to remunerate him due to the difficult financial situation it
underwent.
44. In addition, the club acknowledged not having paid 5 of the player’s monthly salaries
and not having counted with him for the season 2021/2022 in view of the limited
quota it had to sign foreign players upon its relegation.
45. In this context, the Chamber observed that the following events have been
acknowledged by the parties or undisputed by them:
-
The parties entered into an employment contract in October 2020, whereby
the club undertook to pay a monthly salary of EUR 1,000 to the player (the
contract does not provide for any additional benefits such as accommodation,
meals, travel expenses);
-
As per the information contained in the TMS, the club registered the player as
an amateur without any remuneration due to the latter;
-
The Claimant sent several default notices to the club, requesting the latter to
pay his salaries and provide him with his employment contract;
-
The club failed to pay, at least, 5 of the player’s monthly salaries;
-
The club sent the messages dated 6 July and 17 August 2021 to the player,
informing him that the cub could not count with the player’s services for the
season 2021/2022.
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46. As a preliminary remark, the DRC observed that despite the Transfer Matching System
(TMS) stating that the player was registered with the Respondent as an amateur, it
has been acknowledged by the Respondent that the parties concluded a contract in
writing whereby the player was entitled to a monthly salary of EUR 1,000. The
Chamber deemed that the position of the club is rather contradictory, insofar as, on
the one hand, the club argues that the player was an amateur at the club and, on the
other hand, signed a contract with the player where it is specified that the player is a
professional player.
47. In view of the above, the DRC determined that the registration status of the player,
despite the information contained in the TMS was the one of a professional player,
since the contract specifies it so and since the player was entitled to receive a
remuneration of between nine thousand and ten thousand euros per season, which
expenses have not been justified by the club in order to prove that the player’s
remuneration was just covering the player’s expenses.
48. In addition, despite the contract on file not being signed by both parties and no
further contractual information being inserted in the TMS, insofar as both parties
agree on the essential terms of the contract, i.e. its duration, the main obligations of
the parties and the remuneration of the player, the DRC concluded that, albeit not
optimal, the conditions inserted in the contract provided by the club are to be
considered as the contractual obligations undertaken by the parties.
Which party terminated the contract? Was it made with or without just cause?
49. The club having acknowledged having sent the message dated 6 July 2021 to the
player, whereby the latter informed him that the club “can’t keep you in the squad”,
the DRC decided that -as maintained by the player- the club unilaterally terminated
the contract on the said date, since the player, as from that moment, could no longer
reasonably expect the club to maintain its contractual obligations.
50. Thus, the Chamber concluded that the club unilaterally terminated the contract
without just cause on 6 July 2021. Thus, the argumentation of the club that neither of
the parties terminated the contractual relationship shall be rejected.
Is the Claimant entitled to receive the amounts requested?
51. In this respect, the Chamber observed that the Claimant has failed to substantiate his
petita, requesting outstanding salaries without any breakdown, as well as further
entitlements (housing, meals, travel expenses to attend training sessions and flight
tickets).
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52. As for the salaries claimed, despite the lack of breakdown, the club acknowledged
being in default of 5 salaries. Thus, the Chamber determined that the player is entitled
to the amount of EUR 5,000 as outstanding salaries. Nevertheless, given the
impossibility to allocate them, it is proposed that the default interest to be awarded
shall run as from the date of claim.
53. In connection with the claim of the player to receive the aforementioned allowances
and reimbursement of expenses, considering that the contract provided by the club
is the only contract available and that it has already been considered that the
conditions therein contained are the ones agreed between the parties, the claim of
the player to be awarded the said allowances and reimbursements must be rejected,
in view of the fact that the contract does not provide for any such entitlements in
favour of the player.
54. As to the compensation requested, it must be noted that the player has failed to
motivate his eventual entitlement to receive any compensation for moral damages.
Thus, the Chamber decided that the said petitum needs to be rejected.
55. However, considering that it has been established that the Respondent terminated
the contract without just cause on 6 July 2021, the DRC concluded that the Claimant
is entitled to receive a compensation for breach of contract which, in the absence of
a compensation clause contractually agreed, needs to be calculated in accordance
with the parameters provided by art. 17 of the Regulations.
56. In view of the potestative nature of clause 3 of the contract concerning the extension
of the club, the DRC considered that it is to be determined that the contract was to
last until the end of the 2022/2023 season and, consequently, the residual value of
the contract amounts to EUR 18,000.
ii. Consequences
57. 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.
58. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, amount to EUR 5,000, as
explained above. 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 5,000, corresponding to 5 monthly salaries in the amount
of EUR 1,000 each.
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59. 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 25 February 2022
until the date of effective payment.
60. 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 maximum of five years, and depending on whether the contractual
breach falls within the protected period.
61. 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.
62. 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.
63. 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 18,000 (i.e. the
residual value of the contract) serves as the basis for the determination of the amount
of compensation for breach of contract.
64. 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.
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65. In this respect, the DRC verified that the player did not sign any new contract following
the termination of the employment relationship at stake and, consequently, the
player was not able to mitigate his damages.
66. Consequently, and on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the
amount of EUR 18,000 to the player (i.e. the residual value of the contract), which was
to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
67. 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 25 February 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
68. Finally, taking into account the applicable Regulations, the Chamber referred to art.
24bis 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.
69. 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.
The overall maximum duration of the registration ban shall be of up to three entire
and consecutive registration periods.
70. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay
the full amount due (including all applicable interest) to the Claimant within 45 days
of notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become
immediately effective on the Respondent in accordance with art. 24bis par. 2, 4, and
7 of the Regulations.
71. 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.
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72. 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. 8 of the Regulations.
d. Costs
73. 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.
74. 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.
75. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Emmanuel Doku, is partially accepted.
2.
The Respondent, MKE Ankaragucu SK, has to pay to the Claimant, the following
amount(s):
-
EUR 5,000 as outstanding remuneration, plus 5% interest p.a. as from 25
February 2022 until the date of effective payment;
-
EUR 18,000 as compensation for breach of contract, plus 5% interest p.a. as
from 25 February 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.
Pursuant to art. 24bis 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:
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1. The Respondent shall be banned from registering any new players, either
nationally or internationally, up until the due amount is paid. The maximum
duration the ban shall be of three entire and consecutive registration periods.
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.
6. The consequences shall only be enforced at the request of the Claimant in
accordance with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status
and Transfer of Players.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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).
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