Labour Disputes
Texto da decisão
REF. FPSD-13467
Decision of the
Dispute Resolution Chamber
passed on 4 April 2024
regarding an employment-related dispute concerning
the player Olivier Michel Kemen
COMPOSITION:
Lívia Silva Kägi (Brazil/Switzerland), Deputy Chairwoman
Stella Maris Juncos (Argentina), member
Jorge Gutierrez (Costa Rica), member
CLAIMANT:
Olivier Michel Kemen, France & Cameroon
Represented by Varet Près Killy (SELARL)
RESPONDENT:
Mondihome Kayserispor, Türkiye
pg. 2
REF. FPSD-13467
I. Facts of the case
1.
On 5 August 2021, the Cameroonian and French player, Olivier Michel Kemen (hereinafter:
the Claimant or the player) and the Turkish club, Mondihome Kayserispor (hereinafter: the
Respondent or the club) concluded an employment contract valid as from the date of
signature until 31 May 2024 (hereinafter: the contract).
2.
The player was born on 20 July 1996.
3.
In accordance with clause 6 of the contract, the player is entitled to the following amounts:
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Season 2021/2022: EUR 425,000: EUR 75,000 as an advance payment payable at the
date of signature and 10 monthly instalments of EUR 35,000 payable as follows:
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•
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Season 2022/2023: EUR 425,000: EUR 75,000 as an advance payment payable on
15 August 2022 and 10 monthly instalments of EUR 35,000 payable as follows:
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EUR 35,000 on 30 August 2021.
EUR 35,000 on 30 September 2021.
EUR 35,000 on 30 October 2021.
EUR 35,000 on 30 November 2021.
EUR 35,000 on 30 December 2021.
EUR 35,000 on 30 January 2022.
EUR 35,000 on 28 February 2022.
EUR 35,000 on 30 March 2022.
EUR 35,000 on 30 April 2022.
EUR 35,000 on 30 May 2022.
EUR 35,000 on 30 August 2022.
EUR 35,000 on 30 September 2022.
EUR 35,000 on 30 October 2022.
EUR 35,000 on 30 November 2022.
EUR 35,000 on 30 December 2022.
EUR 35,000 on 30 January 2023.
EUR 35,000 on 28 February 2023.
EUR 35,000 on 30 March 2023.
EUR 35,000 on 30 April 2023.
EUR 35,000 on 30 May 2023.
Season 2023/2024: EUR 425,000: EUR 75,000 as an advance payment payable on
15 August 2023 and 10 monthly instalments of EUR 35,000 payable as follows:
•
•
•
EUR 35,000 on 30 August 2023.
EUR 35,000 on 30 September 2023.
EUR 35,000 on 30 October 2023.
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REF. FPSD-13467
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EUR 35,000 on 30 November 2023.
EUR 35,000 on 30 December 2023.
EUR 35,000 on 30 January 2024.
EUR 35,000 on 28 February 2024.
EUR 35,000 on 30 March 2024.
EUR 35,000 on 30 April 2024.
EUR 35,000 on 30 May 2024.
4.
Moreover, the player would be entitled to an allowance in the amount of EUR 10,000 net
for accommodation and transportation per season which was due on the 30th of August
of the relevant years.
5.
Clause 6.7 of the contract reads as follows:
“In case the Club fails to make any salary or bonus payment to the Player on its due
date and is in default for more than 60 days, the Player shall notify the Club in writing
and provide fifteen (15) days to the Club for payment. If the Club fails to pay any such
outstanding remuneration within the notified 15-day period, the Player shall have tl1e
option to terminate the Contract unilaterally with just cause, bring proceedings before
FIFA in accordance with Article 8 A) below, and claim compensation and damages
against the Club (including payment of all salaries due by the Club until the end of the
term of the Contract).”
6.
In accordance with the Transfer Matching System (TMS), on 3 October 2023, the club
changed its name from Kayserispor Kulübü Dernegi/Kayserispor Kulubu to Mondihome
Kayserispor.
7.
On 18 October 2023, the Claimant put the Respondent in default and requested payment
of EUR 155,000 corresponding to the payments due on 15 August 2023, 30 August 2023,
and 30 September 2023 salaries as well as the allowance for accommodation and
transportation, setting a deadline of 15 days in order for the Respondent to remedy its
default.
8.
On 3 November 2023, the Claimant put again the Respondent in default and requested
payment of EUR 190,000 corresponding to the payments of 15 August 2023, 30 August
2023, 30 September 2023, and 30 October 2023 salaries as well as the allowance for
accommodation and transportation, setting a deadline of 15 days in order for the
Respondent to remedy its default.
9.
On 10 November 2023, the club paid EUR 35,000 to the player.
10. On 17 November 2023, the club paid EUR 45,000 to the player.
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REF. FPSD-13467
11. On 23 December 2023, the Claimant sent a termination notice to the club on the grounds
of overdue payables.
12. On 30 January 2024, the player signed an employment contract (hereinafter: the new
contract) with the Turkish club, İstanbul Başakşehir Futbol Kulübü Anonim Şirketi
(hereinafter: IBFK), valid as from the date of signature until 30 June 2027.
13. In accordance with clause 6.1 of the new contract, for the season 2023/2024 the player was
entitled to:
“350.000,00-Euro (Three Hundred Fifty Thousand Euros) of the above-mentioned total
amount is to be paid to the Player by the Club as a monthly salary in 5 (five) equal
installments (5 x 70.000,00 Euro) between the period February 2024 – June 2024. The
monthly salaries are to be paid the last day of the relevant months.
50.000,00-Euro (Fifty Thousand Euros) of the aforementioned amount is determined
as the total minimum guarantee bonuses in favor of the Player and is to be paid
during the relevant football season. All the bonus payments under any name
whatsoever, which are made to the Player during the football season, shall be
calculated and in case these bonus payments are less than net 50.000,00-Euro, the
outstanding part up to the aforementioned amount shall be paid by the Club to the
Player until 30.06.2024. The Parties determine this amount to guarantee the bonus
payments to be paid to the Player during the football season. All the team bonuses
and/or success bonuses to be paid to the Player under any name whatsoever are
included in this total guarantee bonus payment and shall be deducted from this
amount during the relevant football season. Match and team bonuses shall be fixed
and paid in Turkish Lira pursuant to the effective buying rate of Central Bank of the
Republic of Turkey on the date of 01.02.2024 and these will be deducted from the
aforementioned guarantee bonus payment amount.”
14. In accordance with clause 6.4 of the new contract:
“- [IBFK] shall cover the monthly house rent of the Player’s domicile up to 2.000,00Euro (Two Thousand Euros). In case of existence, the exceeding amount shall be
covered by the Player himself. The expenditures of the house (including but not limited
to electricity, water, heating) shall be covered by the Player himself.
- [IBFK] shall provide the Player 10 (ten) round-trip total business class flight tickets to
his country, İstanbul – France for the use of the Player, his wife and his kids per season.
Exceptionally, only 5 (five) round-trip total business class flight tickets shall be
provided by the Club for the remaining part of 2023/2024.
- [IBFK] shall provide an appropriate car (the discretion of choosing the car is belong
to [IBFK]) for the use of the Player during the continuation of this Contract provided
that the Player has a driving license which is valid in Turkey. The Player will be
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REF. FPSD-13467
responsible for all the costs of the car other than rent/leasing fee, insurance
premiums, tax and maintenance. The Player mainly has to cover fuel, tolls, fines etc.”
II. Proceedings before FIFA
15. On 24 January 2024, 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 indicated that the club failed to pay his outstanding remuneration
since August 2023. In particular and following the second default notice in the amount of
EUR 190,000, the club only paid EUR 80,000 (EUR 35,0000 on 10 November 2023 and 45,000
on 17 November 2023) and did not pay the salary due in November 2023.
17. In view of the foregoing, the player stated that the club failed to fulfil its contractual
obligations, and therefore, he had just cause to terminate the contract. As a result, the
player claimed he is entitled to outstanding remuneration and compensation for breach of
contract.
18. The Claimant requested the following relief:
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EUR 145,000 as outstanding remuneration:
EUR 75,000 corresponding to the payment on 15 August 2023
EUR 35,000 corresponding to the payment on 30 October 2023
EUR 35,000 corresponding to the payment on 30 November 2023
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EUR 245,000 as compensation: (EUR 35,000 *6).
b. Position of the Respondent
19. In its reply, the Respondent challenged the unilateral termination of the contract
considering that:
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The player was aware of the club's financial situation and the sporadic payments,
and was equally aware that the Respondent would "eventually" meet its financial
obligations. The Claimant did not contest this behaviour and it should be considered
that he tacitly accepted the terms of employment.
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The Respondent argued that the termination was "orchestrated by the Claimant" as
the media suggested a transfer to the player's new club shortly after the termination
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REF. FPSD-13467
(less than 24 hours). The player's move cannot be seen as a coincidence as the club’s
former coach also unilaterally terminated his contract and joined the new club.
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The Respondent requested FIFA to request the new contract of the player from the
Türkiye Football Federation, as it considered that the player “may present a fabricated
contract with the purpose of unjust enrichment”.
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“The Respondent also would like to underline that The Claimant is not entitled for full
salary corresponding to December 2023. This amount should be reduced pro rata”.
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Finally, the Respondent indicated the following “The Claimant’s request for
compensation is also very excessive. The Claimant has only 5 months remaining on his
employment contract and the compensation requested corresponds more than the total
value of the remaining contract. This is unjust and has no legal ground. While The
Claimant mentions that compensation corresponding to 6 monthly cost of a player is
awarded in extreme cases where a club is in constant and severe breach, the case in hand
does not involve such conditions. The Respondent considers this as an attempt for gaining
unjust enrichment.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
20. 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 24 January 2024 and submitted
for decision on 4 April 2024. Taking into account the wording of art. 34 of the March 2023
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.
21. 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 par. 1lit. b)
of the Regulations on the Status and Transfer of Players (February 2024 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
French/Cameroonian player and a Turkish club.
22. 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 (February 2024 edition), and
considering that the present claim was lodged on 24 January 2024, the May 2023 edition of
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REF. FPSD-13467
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
23. 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 TMS.
c. Merits of the dispute
24. 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.
i. Main legal discussion and considerations
25. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that this is a claim of a player against a club for breach of
contract.
26. According to the player, he terminated the contract with just cause due to outstanding
remuneration. In the other hand, the Respondent indicated that the player was aware of
the late payments of the club and that he accepted this situation, moreover, it indicated
that the player “orchestrated” this termination in order to sign a contract with his new club.
27. Considering said constellation, the DRC noted that the player claims not having received
his remuneration corresponding EUR 145,000. The DRC also noted that the Claimant has
provided written evidence of having put the Respondent in default two times, on 18
October 2023 and 3 November 2023, i.e., at least 15 days before unilaterally terminating
the contract on 23 December 2023.
28. Moreover, the Chamber noted that in the two default notices the Claimant requested the
payment of his outstanding remuneration corresponding to EUR 155,000 (i.e., more than 4
salaries) in the first default and EUR 190,000 (i.e., more than 5 salaries) in the second
default. The Chamber also noted that the club only paid EUR 80,000 after being served with
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REF. FPSD-13467
the second default notice. Therefore, as it did not fully pay the amount requested the club
was not able to cure its default.
29. Furthermore, the Chamber noted that at the moment of termination, the November 2023
salary felt due and was not paid along with the rest of the amounts due.
30. As to the argumentation of the club that the player was aware of this situation and
accepted the be paid late, the Chamber stressed that this argumentation cannot be
followed, since it was evident that by sending two default notices to the club reclaiming his
outstanding remuneration, he was not in agreement to it.
31. For sake of clarity, the Chamber acknowledged that clause 6.7 of the contract provided a
definition for termination with just cause and payment of compensation in case this clause
was triggered:
“In case the Club fails to make any salary or bonus payment to the Player on its due
date and is in default for more than 60 days, the Player shall notify the Club in writing
and provide fifteen (15) days to the Club for payment. If the Club fails to pay any such
outstanding remuneration within the notified 15-day period, the Player shall have tlhe
option to terminate the Contract unilaterally with just cause, bring proceedings before
FIFA in accordance with Article 8 A) below, and claim compensation and damages
against the Club (including payment of all salaries due by the Club until the end of the
term of the Contract).” (Emphasis added)
32. However, the Chamber highlighted that the above clause grants a grace period of 60 days
plus 15 days, which is contrary to art. 18 par. 6 of the Regulations. Moreover, the Chamber
considered that such clause lacks clarity. Consequently, the DRC concluded that said clause
cannot be applicable to the present case.
33. Finally, and in view of all the above, the DRC concluded that the player had a just cause to
unilaterally terminate the contract based on art. 14bis of the Regulations.
ii. Consequences
34. 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.
35. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, amounted to EUR 180,000: EUR
75,000 corresponding to the payment due on 15 August 2023, EUR 35,000 corresponding
to the payment due on 30 October 2023, EUR 35,000 corresponding to the payment due on
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REF. FPSD-13467
30 November 2023 and EUR 35,000 corresponding to the payment due on 30 December
2023.
36. 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
180,000.
37. 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.
38. 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.
39. 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.
40. 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 175,000 serves as the basis for the determination of the
amount of compensation for breach of contract.
41. 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
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REF. FPSD-13467
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
42. Indeed, the player found employment with IBFK. In accordance with the pertinent
employment contract, the Chamber concluded that the player mitigated his damages in
the total amount of EUR 240,000.
43. 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.
44. In this respect, the DRC decided to award the amount of additional compensation of USD
EUR 106,250 (EUR 425,000/12*3), i.e., three times the monthly remuneration of the player.
45. 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 106,250 to the player, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
iii. Sporting Sanctions
46. In continuation, the Chamber recalled that under art. 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.
47. 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”.
48. In the present case, the player was 25 years old when he signed the contract, which took
place on 5 August 2021. As such, the Chamber confirmed that since the termination of the
contract occurred on 24 December 2023, it took place within the protected period. At the
same time, the DRC recalled that the player terminated the contract with just cause.
49. Furthermore, the Chamber wished to recall the Commentary on the RSTP (2023 edition):
“[…] the DRC has established jurisprudence according to which sporting sanctions are
regularly applied against clubs found, at least four times in the two years preceding
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the DRC decision, to have terminated a contract without just cause or to have seriously
breached contractual obligations such that a player has just cause to terminate their
contract. It must be noted, however, that while the DRC applies this approach with
relative consistency, there were cases in which the circumstances merited sanctions to
be imposed on clubs right away even if the threshold of four repeated offences was
not met.
In other words, should the circumstances of a case justify it, nothing prevents the DRC
from immediately imposing sporting sanctions, even in a first case of breach of
contract of a club. Likewise, it is clear that the Regulations allow the DRC to impose
sporting sanctions without any “mathematical” threshold, again depending on the
circumstances of each case. […]” (pp. 211 and 212).
50. In view of the foregoing, the Chamber noted that as per the specific circumstances of the
case, the club has been constantly breaching the contract by not paying a rather significant
portion of the player’s salary on time. This alone, in the Chamber's view, would have been
sufficient to justify imposing sporting sanctions on the club. In addition to the above, the
Chamber noted that the club had also on many occasions in the recent past been held
liable by the Football Tribunal for the early termination of employment contracts without
just cause. In fact, the DRC noted that the Club had already been imposed a registration
ban due to repetitive breaches of contract in May 2022 (cf. FPSD-5441), however, even after
having served such ban entirely, persisted with the unlawful behaviour.
51. What is more, the Chamber highlighted that during 2022 and 2023, the Club was again held
liable for breaches of contracts in at least four opportunities, namely in the cases detailed
in continuation, which was deemed to be against the spirit of the Regulations and especially
the principle of contractual stability.
•
•
•
•
FPSD-6413, Decision of 14 September 2022.
FPSD-6634, Decision of 14 September 2022.
FPSD-8186, Decision of 23 February 2023.
FPSD-7015, Decision of 26 May 2023.
52. Based on the foregoing, the Chamber decided that, by virtue of art. 17 par. 4 of the
Regulations, the Club shall be sanctioned with a ban from registering any new players,
either nationally or internationally, for two entire and consecutive registration periods.
53. 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 based
on 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
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REF. FPSD-13467
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
54. 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.
55. 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.
56. 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, Olivier Michel Kemen, is partially accepted.
2.
The Respondent, Mondihome Kayserispor, must pay to the Claimant the following
amount(s):
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EUR 180,000 as outstanding remuneration.
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EUR 106,250 as compensation for breach of contract without just cause.
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 is not made within 30 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 Governing the Football
Tribunal).
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
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