Labour Disputes
Texto da decisão
REF FPSD-4837
Decision of the
Dispute Resolution Chamber
passed on 24 March 2022
regarding an employment-related dispute concerning the player Jires Kembo
Ekoko
COMPOSITION:
DE WEGER, Frans (The Netherlands), Chairperson
BOEYKENS, Stijn (Belgium), member
CHETTY, Elvis (Seychelle), member
CLAIMANT:
Jires Kembo Ekoko, France
Represented by Regis Amorin-Fourin
RESPONDENT:
Bursaspor Kulubu, Turkey
Page 2
REF FPSD-4837
I.
Facts of the case
1.
On 10 August 2021, the French player Jires Kembo Ekoko (hereinafter: the player or the
Claimant) and the Turkish club Bursaspor Kulubu (hereinafter: the club or the Respondent)
concluded a settlement agreement (hereinafter: the settlement agreement).
2.
The object of the settlement agreement was to settle amounts owed by the club to the player
in connection with a previous employment agreement existing between the two parties,
considering also two decisions by the FIFA Dispute Resolution Chamber in favour of the
player.
3.
Clause 6 of the settlement agreement established that the club would pay EUR 1,113,630
net to the player, as follows:
a. “EUR 450,000 upon execution of the settlement agreement;
b. EUR 65,000 each 30th day between the months of September and December
2021;
c. EUR 143,630 on 30 January 2022;
d. EUR 65,000 each 30th day between the months of February and May 2022.”
4.
Clause 8 of the settlement agreement established that in case of default by the club, an
interest rate of 18% p.a. would apply from the due date until the date of effective payment.
5.
Clause 8 of the settlement agreement established that in case of default, the club would be
liable for payment of a fine of EUR 10,000 on top of the amounts unpaid.
6.
On 17 January 2022, the Claimant filed the claim at hand before FIFA.
7.
According to the Claimant, the instalments of the settlement agreement due between
September and December 2021 were not paid by the club. As such, he requests payment of
EUR 300,000, corresponding to each instalment (EUR 260,000) plus the relevant fine of EUR
10,000 for each instalment unpaid under the settlement agreement (total EUR 40,000). No
interests were requested.
8.
The club filed a short reply and argued that the penalty was excessive and should be
“cancelled”. The club asked that the claim of the player be rejected.
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
9.
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 January 2022 and submitted for decision
Page 3
REF FPSD-4837
on 24 March 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.
10. 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), the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a French player and a Turkish club.
11. 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 17 January 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
12. 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
13. 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.
14. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the principal amount sought by the player is not contested by
the club, who limited its position to the issue of the penalty clause found in the settlement
agreement.
15. In this context, the Chamber, while confirming that the undisputed amounts should be
granted to the player, acknowledged that its task was to determine, based on the evidence
presented by the parties, whether the contractual penalty agreed between the parties should
apply or not.
Page 4
REF FPSD-4837
16. In this respect, the Chamber found that the penalty agreed in the settlement agreement
should be upheld as it is contractually based and not excessive in light of the amounts due by
the club. For the specific instalments sought, the DRC remarked that it amounts to circa 15%,
which is proportionate (and even low) as per the jurisprudence of the DRC.
17. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda,
which in essence means that agreements must be respected by the parties in good faith, the
Respondent is held liable to pay the Claimant the outstanding amounts deriving from the
contract concluded between the parties, together with the corresponding penalty of EUR
10,000 per each unpaid instalment of the settlement agreement, namely EUR 260,000 as
outstanding remuneration and EUR 40,000 as contractual penalty.
18. For the sake of completeness, the Chamber highlighted that no interests were requested by
the Claimant and therefore were not awarded due to the principle ne ultra petita.
19. 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.
20. 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.
21. 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. 24 par. 2, 4, and 7 of the Regulations.
22. 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.
23. 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. 24 par. 8 of the
Regulations.
Page 5
REF FPSD-4837
d. Costs
24. 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.
25. 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.
26. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
Page 6
REF FPSD-4837
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jires Kembo Ekoko, is accepted.
2.
The Respondent, Bursaspor Kulubu, has to pay to the Claimant, the following amount(s):
- EUR 260,000 as outstanding remuneration;
- EUR 40,000 as contractual penalty.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
4.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1.
2.
The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
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.
5.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
6.
This decision is rendered without costs
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 7
REF FPSD-4837
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
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 8