Dispute Resolution Chamber
Texto da decisão
REF FPSD-2732
Decision of the
Dispute Resolution Chamber
passed on 12 August 2021
regarding an employment-related dispute concerning the player Jody Lukoki
COMPOSITION:
Geoff Thompson (England), Chairman
Tomislav Kasalo (Croatia), member
Abu Nayeem Shohag (Bangladesh), member
CLAIMANT:
Jody Lukoki, Netherlands
Represented by Mr Remco Wortel and Ms Linda de Wit.
RESPONDENT:
Yeni Malatyaspor, Turkey
Represented by Mr Burak Cakir
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I.
FACTS OF THE CASE
1.
On 17 August 2020, the Claimant and the Respondent signed an employment contract,
valid between 18 August 2020 and 31 May 2022, based on which the Claimant was entitled
to receive the following amounts:
- EUR 800,000 for the 2020/2021 season, payable as follows: EUR 100,000 upon
signing of the contract and 10 instalments of EUR 70,000 each in the period
between 30 August 2020 and 30 May 2021;
- EUR 800,000 for the 2021/2022 season, payable as follows: EUR 100,000 on 20
August 2021 and 10 instalments of EUR 70,000 each in the period between 30
August 2021 and 30 May 2022.
2.
On 21 April 2021, the Claimant and the Respondent signed an settlement agreement,
based on which the parties agreed that the contract between them would be terminated
on 21 April 2021 and based on which the Respondent would pay the total amount of EUR
210,000 to the Claimant, as follows:
- EUR 70,000 on 23 April 2021;
- EUR 70,000 on 30 June 2021;
- EUR 70,000 on 30 July 2021.
3.
On 11 May 2021, the Claimant put the Respondent in default for the amount of EUR
70,000, providing a 3 days’ deadline to remedy the default, however to no avail.
4.
On 14 May 2021, the Claimant informed the Respondent that it would start a legal
proceeding before FIFA.
5.
On 19 May 2021, the Claimant informed the Respondent that – insofar the settlement
agreement is annulled – he hereby unilaterally terminated the contract with the
Respondent.
II.
PROCEEDINGS BEFORE FIFA
6.
On 4 June 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
The claim of the Claimant
7.
In his claim, the Claimant explains that the Respondent failed to meet its contractual
obligations several times.
8.
The requests for relief of the Claimant, as amended, were the following:
To be awarded the total amount of EUR 243,479.18 as follows:
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-
b.
EUR 210,000 as outstanding amount as per the settlement agreement;
EUR 1,979.18 as interest due ‘until the date of claim’;
Interest as from the date of claim;
EUR 31,500 as extrajudicial costs.
Position of the Respondent
9.
In its reply to the Claimant’s claim, the Respondent argued that it indeed did not pay the
first instalment of EUR 70,000, however that the second and third instalment of EUR 70,000
are not due yet.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
10.
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 4 June 2021 and submitted for
decision on 12 August 2021. Taking into account the wording of art. 21 of the 2021 edition
of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
11.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and
b) of the Regulations on the Status and Transfer of Players (edition February 2021), 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 Dutch player
and a Turkish club.
12.
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 (edition February 2021), and
considering that the present claim was lodged on 4 June 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b.
13.
Burden of proof
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
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14.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
15.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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
16.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute the total amount that was
outstanding as per the settlement agreement concluded between the parties.
17.
In this context, the Chamber acknowledged that it its task was to whether the amounts
claimed by the Claimant had indeed already fallen due and were to be paid by the
Respondent.
18.
In this respect, the members of the Chamber noted that it remained uncontested between
the parties that the first instalment in the amount of EUR 70,000 had fallen due and
remained unpaid by the Respondent.
19.
What is more, the members of the Chamber noted that – although the settlement does not
hold an acceleration clause, on the basis of which the late payment of one instalment would
lead to the other instalments immediately becoming due – the other instalments had also
fallen due at the time of the passing a decision in the matter at hand.
20.
As a result of the foregoing, the Chamber decided to reject the argumentation submitted
by the Respondent and concluded that the Claimant is entitled to full value of the
settlement agreement.
ii. Consequences
21.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of the settlement agreement
committed by the Respondent.
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22.
Consequently, the Chamber decided that in accordance with the general legal principle of
pacta sunt servanda, the Respondent is liable to pay to the Claimant the amount of EUR
210,000, plus interest at the rate of 5% p.a. as from the respective due dates.
23.
Subsequently, the Dispute Resolution Chamber decided to reject the Claimant’s claim
pertaining to legal / extrajudicial costs in accordance with art. 18 par. 4 of the Procedural
Rules and the Chamber’s respective longstanding jurisprudence in this regard.
24.
The Chamber concluded its deliberations in the present matter by rejecting any further
request filed by the Claimant.
iii. Compliance with monetary decisions
25.
Finally, taking into account the consideration under number 22. above, the Chamber
referred to par. 1 lit. and 2 of art. 24bis 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.
26.
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.
27.
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.
28.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
29.
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.
30.
Costs
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
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and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
31.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
32.
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, Jody Lukoki, is partially accepted.
2.
The Respondent, Yeni Malatyaspor, has to pay to the Claimant, the following amount:
- EUR 210,000 as outstanding amount, plus 5% interest p.a. until the date of effective
payment as follows:
on the amount of EUR 70,000 as from 24 April 2021;
on the amount of EUR 70,000 as from 1 July 2021;
on the amount of EUR 70,000 as from 31 July 2021.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account set out in the
enclosed Bank Account Registration Form.
5.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not paid within 45 days of notification of this decision, the
following consequences shall apply:
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 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 paid by the end of
the of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
7.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
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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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