Labour Disputes
Texto da decisão
REF FPSD-4555
Decision of the
Dispute Resolution Chamber
passed on 23 June 2022
regarding an employment-related dispute concerning the player Teikeu Kangang
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Gonzalo de Medinilla (Spain), member
Mario Flores Chemor (Mexico), member
CLAIMANT / COUNTER-RESPONDENT:
Teikeu Kangang, Cameroon
Represented by Selçuk Demir
RESPONDENT / COUNTER-CLAIMANT:
Buyuksehir Belediye Erzurumspor, Turkey
INTERVENING PARTY:
SM Caen, France
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REF FPSD-4555
I.
Facts of the case
1.
According to the player from Cameroon, Teikeu Kangang (hereinafter: player or
Claimant/Counter-Respondent), on 31 August 2020, he and the Turkish club, Buyuksehir Belediye
Erzurumspor (hereinafter: club or Respondent/Counter-Claimant) agreed to conclude an
employment relationship as from 31 August 2020 until 31 May 2022, including a yearly salary of
EUR 416,000, payable by the club to the player as follows:
- EUR 56,000 as “down payment” after the signature of the contract;
- EUR 40,000 as salary, payable in monthly instalments between 30 September and 30 May of
the respective year (18x EUR 40,000).
- EUR 56,000 as “down payment” due on 31 August 2021.
2.
On 1 September 2020, the player and the club concluded an employment contract (hereinafter:
contract) valid as from 1 September 2020 until 31 May 2022.
3.
According to the contract, the club, inter alia, undertook to pay the player the following monies:
- EUR 13,000 as salary, payable in monthly instalments between 30 September and 30 May
of the respective year (18x EUR 13,000 = EUR 117,000).
4.
The contract further contained the following clauses:
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5.
On 3 December 2020, the player put the club in default and requested payment of EUR 80,000,
corresponding to his salaries of October and November 2020, within 15 days.
6.
On 9 December 2020, the player and the club concluded a settlement agreement, which
established that “the club shall pay the amount of 40.000,00 € […] corresponding to the salary of
October, by no later than 16 December 2020, […] and the club shall pay the amount the amount
of 40.000,00 € […] corresponding to the salary of November, by no later than 10 January 2021
[…]”.
7.
On 26 March 2021, the player put the club in default and requested payment of EUR 120,000,
corresponding to his salaries of January until March 2021, within 15 days.
8.
On 8 April 2021, the club replied and explained its difficult financial situation, while promising to
remit the payments until 12 April 2021.
9.
On 1 and 3 May 2021, the player put the club in default and requested payment of EUR 80,000,
corresponding to his salaries of March and April 2021, within 15 days.
10. On 6 May 2021, the club replied to the player and pointed out that less than two monthly salaries
remained outstanding, as the total amount due to the player is EUR 75,000.
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11. On 24 May 2021, the club sent a letter to the player informing him about the club’s intention to
exercise its right to terminate the contract between 1 June 2021 and 15 June 2021 in accordance
with art. 23 of the contract (“relegation clause”).
12. On 27 May 2021, the player pointed out that his salaries as of March 2021 remained outstanding
and he requested “full payment of the entire amount due”, within 48 hours.
13. On 31 May 2021, the player terminated the contract with the club due to the outstanding
remuneration in the amount of EUR 120,000, corresponding to the salaries of March, April and
May 2021.
14. According to information contained in the Transfer Matching System (TMS), on 1 January 2022,
the player signed a new employment contract with the French club, SM Caen, valid as of the date
of signature until 30 June 2023, including a monthly salary of EUR 10,800 during the season
2021/2022.
II. Proceedings before FIFA
15. On 14 December 2021, 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
16. In his claim, the player requested payment of the following monies:
- EUR 75,000 “for the salaries of the season 2020/2021”;
- EUR 416,000 as compensation for breach of contract, corresponding to the residual value;
- EUR 240,000 as additional compensation.
The player requested payment of interest of 5% p.a.
17. In this context, the player held that he had just cause to terminate the contract on 31 May 2021,
after having put the club in default before.
18. Furthermore, the player brought forward that the club repeatedly paid his salaries late during the
contractual relationship and that finally, the salaries for March until May 2021 remained
outstanding.
19. The player further pointed out that the parties agreed in the pre-contract on his monthly salary
of EUR 40,000, before the club “forced him” to sign a different contract in order to be submitted
to the Turkish Football Federation. In this regard, the player maintained that he never received
the signed version of the pre-contract, even though he requested to receive it, but only the
contract which was submitted to the Federation.
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20. In this context, the player argued that the club in the settlement agreement regarding certain
instalments and in its correspondence dated 6 May 2021 did not dispute that the player is in fact
entitled to a monthly salary of EUR 40,000, as agreed in the pre-contract.
21. The player further held that he was effectively paid EUR 40,000 as monthly salary between
September 2020 and February 2021.
b. Position of the Respondent / Counterclaim
22. In its reply, the club rejected the player’s claim and lodged a counterclaim against him, requesting
payment of EUR 117,000, i.e. the residual value of the contract, as compensation for breach of
contract.
23. The club held that the player was “offered the pre-contract”, but that the parties renegotiated
terms and subsequently concluded the contract.
24. Nevertheless, the club acknowledged that since the player insisted, the parties “verbally agreed
on applying the financial terms only for the 2020/2021 season”.
25. Furthermore, the club maintained that it faced financial problems due to general economic
problems in Turkey as well as late payments of the broadcasters.
26. Moreover, the club held that the player terminated the contract to avoid that the club would
exercise its termination right arising from the relegation clause and the player would have not
been entitled to any compensation.
27. The club argued that the player did not have just cause to terminate the contract on 31 May 2021,
since such termination was not in accordance with art. 6 of the contract, since two monthly
salaries would have needed to be outstanding and a default notice was necessary.
28. According to the club, it remitted the amount of EUR 40,000 to the player on 31 May 2021,
corresponding to the residual salary for March 2021 (EUR 35,000) and EUR 5,000 for April 2021.
29. In this context, the club argued that not the full amount of two monthly salaries was outstanding
at the moment of the termination and no default notice was issued for the salary of May 2021.
c. Player’s position to the counterclaim
30. In reply to the club’s claim, the player refuted the club’s allegations and requested to dismiss the
counterclaim.
31. First of all, the player pointed out that the club acknowledged that a salary of EUR 40,000 was due
to the player. In this regard, the player reiterated his position and held having had just cause to
terminate the contract on 31 May 2022.
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32. Moreover, the player argued that the relegation clause, if valid at all, could not have been
“activated” before 1 June 2021, certainly not on 24 May 2021, with an email to the player’s alleged
agent.
d. Position of the intervening party
33. SM Caen failed to submit its position to the matter at hand.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
34. 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 14 December 2021 and submitted for decision on
23 June 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.
35. 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 employment-related dispute with an
international dimension between a player from Cameroon and a Turkish club.
36. 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 14 December 2021, 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
37. 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).
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c. Merits of the dispute
38. 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 abovementioned 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.
i. Main legal discussion and considerations
39. The foregoing having been established, the Chamber moved to the substance of the matter, and
took note of the fact that the parties dispute the justice of the early termination of the contract
by the player, based on the alleged non-payment of certain financial obligations by the club.
40. In this context, the Chamber acknowledged that its task was to determine as to whether the
contract was terminated by the player with or without just cause and to decide on the
consequences thereof.
41. In this context, the Chamber started to analyse the circumstances of the player’s termination on
31 May 2021 due to outstanding salaries.
42. First of all, the DRC started to establish which contractual arrangements would be taken into
account as the pre-contract is not signed by the club. Since the club acknowledged that the
player’s salary was EUR 40,000 per month, the Chamber concluded that such monthly salary was
effectively due to the player and that the financial terms of the pre-contract apply.
43. Moreover, the members of the Chamber noted that the club alleged having paid an amount of
EUR 40,000 on 31 May 2021 (corresponding to the residual salary for March 2021 (EUR 35,000)
and EUR 5,000 for April 2021).
44. Such payment was not acknowledged by the player. The DRC established that the burden of proof
lies with the club to proof such payments, which it in casu failed to do.
45. On account of the above, the Chamber concluded that the salary payments as of March 2021
remained partially outstanding without a valid reason.
46. Taking into account the outstanding remuneration at the time of the termination, i.e. nearly three
monthly salaries, as well as the fact that the player had to terminate the contract before 1 June
2021 due to the relegation clause, the DRC concluded that the player had just cause to terminate
the contract on 31 May 2021.
47. Therefore, the DRC decided to reject the club’s counterclaim.
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ii. Consequences
48. 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.
49. 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 EUR 75,000.
50. 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 75,000.
51. 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 due dates until the date of effective payment.
52. 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.
53. 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.
54. 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.
55. 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 416,000 serves as the basis for the determination of the amount of compensation
for breach of contract.
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56. 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.
57. Indeed, the player found employment with SM Caen. In accordance with the pertinent
employment contract, the player was entitled to EUR 10,800 during the season 2021/2022.
Therefore, the Chamber concluded that the player mitigated his damages in the total amount of
EUR 54,000, that is, 5 times (months February until May 2022) EUR 10,800.
58. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which
a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to overdue
payables. In the case at hand, the Chamber confirmed that the contract termination took place
due to said reason i.e. overdue payables by the club, and therefore decided that the player shall
receive additional compensation.
59. In this respect, the DRC decided to award the amount of additional compensation of USD 54,000,
i.e. three times the monthly remuneration of the player, taking into account that the
compensation shall not exceed the residual value of the contract.
60. Consequently, 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 416,000 to the
player (i.e. EUR 416,000 minus EUR 54,000 plus EUR 54,000), which was to be considered a
reasonable and justified amount of compensation for breach of contract in the present matter.
61. 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 until the date of effective payment.
iii. Compliance with monetary decisions
62. 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.
63. 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.
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64. Therefore, bearing in mind the above, the DRC decided that the club 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 player, 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.
65. 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.
66. 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.
d. Costs
67. 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.
68. 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.
69. 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, Teikeu Kangang, is partially accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Buyuksehir Belediye Erzurumspor,
is rejected.
3.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent, the following
amount:
- EUR 35,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2021 until
the date of effective payment;
- EUR 40,000 as outstanding remuneration plus 5% interest p.a. as from 1 June 2021 until
the date of effective payment;
- EUR 416,000 as compensation for breach of contract without just cause plus 5% interest p.a.
as from 14 December 2021 until the date of effective payment.
4.
Any further claims of the Claimant/Counter-Respondent 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 Respondent/Counter-Claimant 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.
7. The consequences shall only be enforced at the request of the Claimant/Counter-Respondent 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).
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