Labour Disputes
Texto da decisão
REF 20-00595/mdo
Decis ion of the
Dis pute Res olution Cham ber
pas s ed v ia v ideoconference, on 2 July 2020,
regarding an em ploy m ent-related dis pute concerning the play er Alagi Dodou
Matar S os s eh
COMPOS ITION:
Clifford J. Hendel (USA/France), Deputy Chairman
Michelle Colucci (Italy), member
Todd Durbin (USA), member
CLAIMANT:
ALAGI DODOU MATAR SOSSEH, Sweden
Repres ented by Mr Ercan S ev dim baş
RES PONDENT:
FATIH KARAGÜMRÜK AS, Turkey
Repres ented by Mr S am i Dinc and Mr Em irhan Çev iker
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I. FACTS OF THE CAS E
1.
On 16 July 2019, the Swedish player, Alagi Dodou Matar Sosseh (hereinafter: the Claimant
or the player) and the Turkish club, Fatih Karagümrük AS (hereinafter: the Respondent
or the club) concluded an employment contract (hereinafter: the contract), valid as from
the date of signature until 31 May 2020.
2.
Pursuant to article 6.1 of the contract, the club committed itself to pay to the player a
total remuneration of EUR 100,000, payable as follows:
“[EUR 70,000] of the aforementioned amount is to be paid to the Player by the
Club as the monthly salary in 10 (ten) equal installments […] between the period
August 2019 – May 2020. The monthly salaries are to be paid the last day of the
relevant months.
[EUR 30,000] of the abovementioned amount shall be paid to the Player until
01.06.2020 as a guarantee payment. This payment shall be paid in consideration
of the whole service period of the Player during 2019/200 football season and
it shall be a progressed amount at the end of the football season”.
3.
As per the Claimant, the Respondent failed to pay his remuneration in a timely manner.
4.
In this context, on 6 January 2020, the Claimant sent a default notice to the Respondent,
requesting outstanding remuneration in the amount of EUR 30,000, granting the
Respondent a 15 days’ deadline to remedy the default. According to the Claimant, the
Respondent “neither made any payment nor made any attempt to amicably settle”.
5.
On 22 January 2020, the Claimant unilaterally terminated the contract. As per the player,
as a result of the Respondent’s “unacceptable, unfair and unlawful attitude”, he
terminated the contract with just cause.
6.
On 9 April 2020, the Claimant lodged a claim in front of FIFA against the Respondent,
requesting the following:
a) Outstanding remuneration in the amount of EUR 30,000 plus 5% interest p.a. as from
the due dates until the date of effective payment;
b) Compensation for breach of contract in the amount of EUR 22,415, plus 5% interest
p.a. as from the date of termination, i.e. 22 January 2020, until the date of effective
payment;
c) Additional compensation in the amount of EUR 60,000 plus 5% interest as from the
date of termination, i.e. 22 January 2020, until the date of effective payment.
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7.
According to the player, the club “paid only 20.000.-EUR from 50.000.-EUR of due
payments till the date of the termination of the contract, 22.01.2020”.
8.
On 20 April 2020, the FIFA Administration notified the claim of the Claimant to the
Respondent and granted the latter a deadline to submit its reply until 11 May 2020, which
was thereafter extended until 21 May 2020.
9.
On 25 May 2020, the Respondent filed its answer to the claim.
10. On 23 June 2020, the FIFA Administration informed the Respondent that its reply had
been filed after the deadline set in FIFA’s letter of 5 May 2020 and thus reminded the
Respondent of the content of art. 9 par. 3 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber.
11. Finally, the Claimant informed FIFA that on 22 February 2020, he signed an employment
contract with the Vietnamese club, Sông Lam Nghe An (hereinafter: “SLNA”), valid as
from the date of signature until “the end of the first round of the season (Estimated 22nd
June 2020)”, according to which he was entitled to a monthly salary of USD 10,000.
II. CONS IDERATIONS OF THE DIS PUTE RES OLUTION CHAMBER
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the case at hand. In this respect, it
referred to the wording of art. 21 of the 2019 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) as well as to the fact that the present matter was
submitted to FIFA on 9 April 2020 and decided on 2 July 2020. Therefore, the DRC
concluded that the 2019 edition of the Procedural Rules is applicable to the matter at
hand.
2. Furthermore, 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, and considering that
the present claim was lodged on 9 April 2020, the March 2020 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
3. Subsequently, the members of the Chamber referred to art. 3 par. 1 and 2 of the
Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in
combination with art. 22 lit. b of the Regulations, it is competent to adjudicate on the
present employment-related dispute between a Swedish player and a Turkish club.
4. The competence of the Chamber and the applicable regulations having been established,
the Chamber entered into the substance of the matter, by acknowledging the above-
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mentioned facts as well as the documentation contained in the file in relation to the
substance of the matter. 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.
5. First of all, the Chamber took into account that, according to the Claimant, on 16 July
2019, the parties concluded an employment contract valid as from the date of signature
until 31 May 2020, according to which the Respondent undertook to pay to the Claimant
a total remuneration of EUR 100,000 (cf. see point I.2. above).
6. In continuation, the members of the Chamber noted that the Claimant lodged a claim
against the Respondent maintaining that he had terminated the employment contract
with just cause on 22 January 2020, after previously having put the club in default, since
the Respondent allegedly failed to pay the Claimant’s remuneration in the amount of
EUR 30,000. Consequently, the Claimant asked to be awarded his outstanding dues as
well as the payment of compensation for breach of the employment contract.
7. At this point, the members of the Chamber recalled that the Respondent had filed its
reply to the claim of the Claimant on 25 May 2020 only. This is, after the deadline set by
the FIFA Administration, i.e. 21 May 2020. In this respect, the DRC referred to art. 9 par.
3 of the Procedural Rules which provides, inter alia, that “submissions received outside
the time limit shall not be taken into account” (emphasis added).
8. Consequently, the members of the Chamber unanimously concluded that the reply of
the club, filed after the expiration of the deadline, cannot be admitted to the file. As
such, the DRC held that, in accordance with art. 9 par. 3 of the Procedural Rules, a
decision shall be taken upon the basis of the admissible documents. In other words, upon
the statements and documents presented by the Claimant.
9. Having said this, the DRC acknowledged that the central issue in the matter at stake was
to determine as to whether the contract was in fact terminated by the Claimant, whether
he had just cause for said termination and to decide on the consequences thereof.
10. With the above in mind, the Chamber proceeded with an analysis of the circumstances
surrounding the present matter, the Claimant’s arguments as well the documentation
on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which
any party claiming a right on the basis of an alleged fact shall carry the burden of proof.
11. In doing so, the DRC recalled that it has remained undisputed that, on 6 January 2020,
the Claimant put the Respondent in default for the non-payment of the amount of EUR
30,000.
12. As regards the outstanding amount claimed by the player, the Chamber recalled that the
Claimant did not provide a breakdown of the outstanding dues he was claiming, either
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in his claim, in his default letter or in his termination notice. As a consequence thereof,
taking into account that the Claimant confirmed having only received the amount of
EUR 20,000 (cf. see point I.7. above), the members of the Chamber started by considering
that the Respondent had paid to the Claimant the amount of EUR 20,000, as follows: (i)
EUR 14,000 corresponding to the monthly salaries for August and September 2019; and
(ii) EUR 6,000 corresponding to the partial salary of October 2019.
13. On account of the aforementioned, the Chamber established that the Respondent,
without any valid reason, failed to remit to the Claimant, until 22 January 2020, date on
which the Claimant terminated the contract, the total amount of EUR 15,000,
corresponding to the following: (i) EUR 1,000 as part of the monthly salary for October
2019; (ii) EUR 7,000 as the monthly salary for November 2019; and (iii) EUR 7,000 as the
monthly salary for December 2019.
14. Consequently, pursuant to article 14bis of the Regulations, and considering that the
Respondent had unlawfully failed to pay the player at least two monthly salaries, the
Chamber decided that the Claimant had just cause to unilaterally terminate the
employment contract on 22 January 2020 and that, as a result, the Respondent is to be
held liable for the early termination of the employment contract with just cause by the
Claimant.
15. On account of the aforementioned considerations, the DRC established that the
Respondent failed to remit the Claimant’s monthly remuneration in the total amount of
EUR 15,000, corresponding to the remainder for the monthly salary of October 2019, i.e.
EUR 1,000, as well as the 2 monthly salaries for November and December 2019, i.e. EUR
7,000 each.
16. 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 outstanding
remuneration in the total amount of EUR 15,000.
17. In addition, taking into account the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber, the DRC decided that the Respondent must pay to
the Claimant interest of 5% p.a. on the amount of EUR 15,000 as from the due dates
until the date of effective payment.
18. In continuation, having established that the Respondent is to be held liable for the early
termination of the employment contract with just cause by the Claimant, the Chamber
focused its attention on the consequences of such termination. In this regard, the
members of the Chamber determined that the Respondent was not only to pay the
amount of EUR 15,000 as outstanding remuneration to the Claimant, but also to pay
compensation for breach of contract in conformity with art. 17 par. 1 of the Regulations.
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19. In this context, the Chamber outlined that, in accordance with the said provision, 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 Claimant 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.
20. In application of the relevant provision, the DRC held that it first of all had to clarify
whether the pertinent employment contract contained any clause, 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 DRC established
that no such compensation clause was included in the employment contract at the basis
of the matter at stake.
21. As a consequence, the DRC determined that the amount of compensation payable by
the Respondent to the Claimant had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The DRC recalled that said
provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
22. Bearing in mind the foregoing, the DRC proceeded with the calculation of the monies
payable to the Claimant under the terms of the employment contract as from its date of
termination with just cause by the Claimant, i.e. 22 January 2020, until its original date
of expiry.
23. The members of the Chamber thus concluded that the Claimant would have received
EUR 65,000 as total guaranteed remuneration if the contract had been executed until 31
May 2020. Consequently, the Chamber concluded that the amount of EUR 65,000 serves
as the basis for the final determination of the amount of compensation for breach of
contract in the case at hand.
24. In continuation, the DRC verified as to whether the Claimant had signed an employment
contract with another club during the relevant period of time, by means of which he
would have been able to reduce his loss of income. According to the constant practice
of the DRC, 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.
25. Indeed, the Claimant signed a new employment contract with the Vietnamese club,
SLNA. In accordance with such employment contract, which has been made available by
the Claimant, valid as from 22 February 2020 until 22 June 2020, the Claimant was
entitled to receive a monthly salary of USD 10,000.
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26. Consequently, the DRC established that the value of the new employment contract
concluded between the Claimant and SLNA for the period as from February 2020 until
and including May 2020 amounted to USD 40,000 (approx. EUR 35,593).
27. Subsequently, the Chamber turned its attention to art. 17 par. 1 lit. ii) of the Regulations,
according to which a player is entitled to an additional compensation of three monthly
salaries, subject to the early termination of the contract being due to overdue payables.
In case of egregious circumstances, the additional compensation may be increased up to
a maximum of six monthly salaries, whereby the overall compensation may never exceed
the rest value of the prematurely terminated contract.
28. With the above in mind, the Chamber decided to award the Claimant additional
compensation corresponding to three monthly salaries, i.e. EUR 21,000, in accordance
with the above-mentioned provision.
29. Consequently, on account of the above-mentioned considerations, the Chamber decided
to partially accept the Claimant’s claim and that the Respondent must pay the amount
of EUR 50,407 as compensation for breach of contract to the Claimant, which is
considered by the Chamber to be a fair and reasonable amount.
30. Furthermore, the Chamber decided to award the Claimant interest at the rate of 5% p.a.
on the amount of EUR 50,407 as from 9 April 2020 until the date of effective payment.
31. Furthermore, taking into account the consideration under number II.2. above, the DRC
referred to par. 1 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.
32. In this regard, the Chamber pointed out 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
and for the maximum duration of three entire and consecutive registration periods.
33. Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from the
moment in which the Claimant, following the notification of the present decision,
communicates the relevant bank details to the Respondent, a ban from registering any
new players, either nationally or internationally, for the maximum duration of three
entire and consecutive registration periods shall become effective on the Respondent in
accordance with art. 24bis par. 2 and 4 of the Regulations.
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34. Finally, the members of the Chamber 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. 3 of the Regulations.
35. The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further request filed by the Claimant is rejected.
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III. DECIS ION OF THE DIS PUTE RES OLUTION CHAMBER
1.
The claim of the Claimant, Alagi Dodou Matar Sosseh, is partially accepted.
2.
The Respondent, Fatih Karagümrük AS, has to pay to the Claimant, the following amount:
-
EUR 1,000 as outstanding remuneration plus 5% interest as from 1 November 2019
until effective payment;
EUR 7,000 as outstanding remuneration plus 5% interest as from 1 December 2019
until effective payment;
EUR 7,000 as outstanding remuneration plus 5% interest as from 1 January 2020 until
effective payment.
EUR 50,407 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 9 April 2020 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the
relevant bank account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with
this decision to ps [email protected], duly translated, if applicable, into one of the official
FIFA languages (English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the
Respondent w ithin 45 day s , as from the notification by the Claimant of the relevant
bank details to the Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally
or internationally, up until the due amount is paid and for the maximum duration
of three entire and consecutive registration periods. The aforementioned ban
mentioned will be lifted immediately and prior to its complete serving, once the
due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the
end of the ban of three entire and consecutive registration periods, the present
matter shall be submitted, upon request, to the FIFA Disciplinary Committee.
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:
Fédération Internationale de Football As s ociation
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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