Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 12 February 2020,
in the following composition:
Om ar Ongaro (Italy ), Deputy Chairman
Jos é Luis Andrade (Portugal), member
Johan v an Gaalen (S outh Africa), member
on the claim presented by the player,
Theodore Bernard Mendy , Senegal
represented by Ms Selin Col
as Claimant
against the club,
Afjet Afy ons por, Turkey
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 1 August 2018, the Senegalese player, Theodore Bernard Mendy (hereinafter: the
player or the Claimant) concluded an employment contract with the Turkish club,
Afjet Afyonspor (hereinafter: the club or the Respondent), valid as from 1 August
2018 until 31 May 2019, according to which the player was entitled to receive a total
fixed remuneration of EUR 168,000 payable as follows:
- EUR 10,000 on 19 July 2018;
- EUR 12,000 on 31 August 2018;
- EUR 18,000 on 25 September 2018;
- EUR 12,000 on 30 September 2018;
- EUR 12,000 on 31 October 2018;
- EUR 20,000 on 28 November 2018;
- EUR 12,000 on 30 November 2018;
- EUR 12,000 on 31 December 2018;
- EUR 12,000 on 31 January 2019;
- EUR 12,000 on 28 February 2019;
- EUR 12,000 on 31 March 2019;
- EUR 12,000 on 30 April 2019; and
- EUR 12,000 on 31 May 2019.
2.
In addition, the contract foresaw that “the club shall provide an appropriate car
(the discretion of choosing the car belong to the club) 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 costs of the car shall be paid by the player.
The club shall provide a furnished flat for use of the player during the
continuation of this contract. The club shall provide the player 2 (two) round trip
economy class tickets for the season.”
3.
Furthermore, the contract stipulated that “the payments are to be due and
payable to the player on the dates determined above. In case the club falls into a
default for any payment for more than 60 (sixty) days then the player shall have
the option to terminate the contract. In order to exercise this option, t he player
shall first send a written notification via a notary public to the club and if the club
fails to pay the amount due to the player within 30 (thirty) days after the receipt
by the club of the respective notification, the player shall be free to terminate
the contract. In this case, the player shall be entitled to take ac tion before FIFA
bodies to settle the dispute. The gainings (sic) of the player arising from the new
club(s) between the termination date and expiration shall be deducted from the
indemnification to be decided by the judicial committees.”
4.
On 22 May 2019, the Claimant lodged a claim for breach of contract, maintaining
he had just cause to terminate, and requested the payment of the following
amounts:
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(1) EUR 94,000 as outstanding remuneration, plus 5% interest p.a. as from the
due dates.
(2) EUR 29,853.93 as compensation for breach of contract, plus 5% interest p.a.
“as from the date of the decision”, i.e. 2 monthly salaries of EUR 12,000 each
(April and May 2019), EUR 853.93 as transportation expenses and EUR 5,000
for the flight tickets.
(3) The Claimant further requested the imposition of sporting sanctions against
the Respondent.
5.
The Claimant maintained that, by the time he had put the Respondent in default
on 15 March 2019, the latter had paid him only the amount of EUR 50,000 out of
the total fixed remuneration of EUR 132,000 stipulated in the contract.
Consequently, given that the Respondent did not comply with its financial
obligations following his default letter, he terminated the employment contract
on 16 April 2019.
6.
Moreover, the Claimant pointed out that, on 14 March 2019, he received a new
training program from the Respondent and he was not any longer included in the
official A Team list nor eligible to play in official games and forced to train alone.
Additionally, the Claimant maintained that the Respondent failed to provide him
with a car and the 2 round trip tickets as per the contract. Consequently, he
claimed that he incurred in EUR 853.93 as taxi expenses (see exhibit 5 to the claim)
and requested EUR 5,000 as “minimum average cost” for the flights.
7.
The Claimant pointed out that, by the time of termination, EUR 94,000 remained
outstanding. Consequently, the Claimant asked to be compensated for the early
termination of the employment contract with just cause.
8.
In its reply to the claim, the Respondent, firstly rejected the Claimant’s request
concerning the transportation expenses, mostly due to the fact that the Clamant
was allegedly residing “10 minutes by car” from the training field. Secondly, the
Respondent claimed that the request for the flight tickets is “higher than it
should be”. The Respondent did not contest the rest of the claim.
9.
Upon FIFA’s request, the player indicated that he remained unemployed over the
relevant period.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
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 submitted to FIFA on 22 May 2019.
Taking into account 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
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(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural
Rules is applicable to the matter at hand.
2.
Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players (edition January 2020), 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
Senegalese player and a Turkish club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, the Chamber confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition January 2020), and considering that the claim was lodged on 22 May 2019,
the June 2018 edition of the aforementioned regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. 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. In particular, the Chamber recalled that, in
accordance with art. 6 par. 3 of Annex 3 of the Regulations, FIFA may use, within the
scope of proceedings pertaining to the application of the Regulations, any
documentation or evidence generated or contained in the TMS.
5.
Having said this, the Chamber proceeded with an analysis of the circumstances
surrounding the present matter, the parties’ 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.
6.
First of all, the members of the Chamber acknowledged that, on 1 August 2018, the
player and the club had concluded an employment contract valid as from the season
2018/2019, pursuant to which the club undertook to pay to the player the
remuneration, as established in point I.1. above.
7.
Furthermore, the members of the DRC took note of the fact that on 15 March 2019
the player had put the club regarding overdue remunerations of a total amount of
EUR 82,000. The DRC also noted that the player declared that the club had sent him
an individual training programme on 14 March 2019, according to which he was
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informed that he was no longer registered with the Respondent’s first team and that
he would be training alone from this day onwards.
8.
Moreover, the DRC took note that, according to the player, he had just cause to
unilaterally terminate the employment contract on 16 March 2019, since the club
failed to remedy to the default. In this regard, the player affirmed that he had no
alternative but to terminate the contract and deemed that the club should be held
liable for the early termination of said contract.
9.
Subsequently, the members of the DRC took note that the club, for its part, only
rejected the player’s claim for taxi expenses and flight tickets.
10.
In light of the foregoing, the DRC considered that the underlying issue in this dispute,
considering the parties’ position, was to determine as to whether the player had just
cause to terminate the employment contract and to determine the consequences
thereof.
11.
In this respect, the DRC duly acknowledged that the club did not contest the
allegations of the player has to the fact that the Claimant sustained that he had just
cause to terminate the contract. In particular, the Chamber noted that it is
uncontested that at the time of termination, the player had only received EUR 50,000
of the fixed total remuneration stipulated in the contract, and that EUR 94,000 were
still due to the player.
12.
At this point, the DRC considered important to emphasise that one of the player’s
fundamental rights under an employment contract is the right to a timely payment
of his remuneration.
13.
In light of the aforementioned, the DRC came to the unanimous conclusion that the
player had terminated the contract with just cause on the basing of significant
outstanding remuneration.
14.
Having established that the Respondent is to be held liable for the early termination
of the employment contract, the Chamber focused his attention on the consequences
of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the
DRC established that the Claimant is entitled to receive from the Respondent
compensation for breach of contract, in addition to any outstanding payments on the
basis of the relevant employment contract.
15.
Subsequently, prior to establishing the consequences of the termination of the
employment contract with just cause by the Claimant in accordance with art. 17 par.
1 of the Regulations, the DRC held that he, in general, had to address the issue of
unpaid remuneration at the moment when the contract was terminated by the
Claimant.
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16.
Bearing in mind the above, the DRC accepted the player’s claim for outstanding
remuneration and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the cub is liable to pay the player the amount of
EUR 106,000 as outstanding remuneration.
17.
Furthermore, considering the player’s claim for interest and also taking into account
the DRC’s longstanding jurisprudence, the DRC judge ruled that the Respondent must
pay interest as follows:
a. 5% interest p.a. over the amount of EUR 2,000 as from 1 October 2018 until the
date of effective payment;
b. 5% interest p.a. over the amount of EUR 12,000 as from 1 November 2018 until
the date of effective payment;
c. 5% interest p.a. over the amount of EUR 20,000 as from 29 November 2018 until
the date of effective payment;
d. 5% interest p.a. over the amount of EUR 12,000 as from 1 December 2018 until
the date of effective payment;
e. 5% interest p.a. over the amount of EUR 12,000 as from 1 January 2019 until the
date of effective payment;
f. 5% interest p.a. over the amount of EUR 12,000 as from 1 February 2019 until
the date of effective payment;
g. 5% interest p.a. over the amount of EUR 12,000 as from 1 March 2019 until the
date of effective payment;
h. 5% interest p.a. over the amount of EUR 12,000 as from 1 April 2019 until the
date of effective payment;
i. 5% interest p.a. over the amount of EUR 12,000 as from 1 May 2019 until the
date of effective payment.
18.
In continuation, the DRC focused its attention on the calculation of the amount of
compensation for breach of contract due to the Claimant by the Respondent in the
case at stake. In doing so, the DRC 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.
19.
In application of the relevant provision, the Chamber 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 a compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Chamber
observed that the employment contract does not contain any such clause.
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20.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the player had to be assessed in
application of the parameters set out in art. 17 par. 1 of the Regulations. Bearing in
mind the foregoing, the Chamber proceeded with the calculation of the monies
payable to the player under the terms of the employment contract as from its
termination and concluded that the player would have been entitled to receive EUR
12,000 as remuneration had the employment contract been executed until its regular
expiry date, i.e. 31 May 2019. Consequently, the Chamber concluded that the amount
of EUR 12,000 serves as the basis for the final determination of the amount of
compensation for breach of contract in the case at hand.
21.
In continuation, the Chamber assessed 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 able to reduce his loss of income. In this respect, the DRC deemed
it necessary to refer to the first sentence of art. 17 par. 1 lit. ii) of the Regulations,
according to which, in case the player signed a new contract by the time of the
decision, the value of the new contract for the period corresponding to the time
remaining on the prematurely terminated contract shall be deducted from the
residual value of the contract that was terminated early (the ”Mitigated
Compensation”).
22.
In respect of all the above, and in view of the fact that the player did not sign a new
contract over the relevant period, the Chamber decided that the Respondent must
pay the amount of EUR 12,000 as compensation for breach of contract to the player.
23.
In addition, taking into account the player’s request and the DRC’s wellestablished jurisprudence, the Chamber decided that the club must pay to the
player interest of 5% p.a. on the amounts of EUR 12,000 as of the date on which
the decision was passed, i.e. 12 February 2020, until the date of effective payment.
24.
What is more, the Chamber, in line with its consistent jurisprudence in this respect,
decided to award the player CHF 606, corresponding to the average cost of a IstanbulDakar flight in Economy class on the basis of the information provided by FIFA Travel.
25.
Therefore, the DRC decided to partially accept the player’s claim and concluded its
deliberations by rejecting any further claim of the player.
26.
Furthermore, taking into account the consideration under number II./3. above, the
Chamber 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 and/or compensation in due time.
27.
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
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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.
28.
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.
29.
Finally, 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.
*****
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III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Theodore Bernard Mendy, is partially accepted.
2.
The Respondent, Afjet Afyonspor, has to pay to the Claimant outstanding
remuneration in the amount of EUR 106,000, plus 5% interest p.a. as follows:
a. 5% interest p.a. over the amount of EUR 2,000 as from 1 October 2018 until the date
of effective payment;
b. 5% interest p.a. over the amount of EUR 12,000 as from 1 November 2018 until the
date of effective payment;
c. 5% interest p.a. over the amount of EUR 20,000 as from 29 November 2018 until the
date of effective payment;
d. 5% interest p.a. over the amount of EUR 12,000 as from 1 December 2018 until the
date of effective payment;
e. 5% interest p.a. over the amount of EUR 12,000 as from 1 January 2019 until the date
of effective payment;
f. 5% interest p.a. over the amount of EUR 12,000 as from 1 February 2019 until the
date of effective payment;
g. 5% interest p.a. over the amount of EUR 12,000 as from 1 March 2019 until the date
of effective payment;
h. 5% interest p.a. over the amount of EUR 12,000 as from 1 April 2019 until the date
of effective payment;
i. 5% interest p.a. over the amount of EUR 12,000 as from 1 May 2019 until the date of
effective payment.
3.
The Respondent has to pay to the Claimant compensation for breach of contract in
the amount of EUR 12,000 and the amount of CHF 606, plus 5% interest p.a. over the
amount of EUR 12,000 as from 12 February 2020 until the date of effective payment.
4.
Any further claim lodged by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the e-mail address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amounts mentioned under points 2 and 3 above.
6.
The Respondent shall provide evidence of payment of the due amounts in accordance
with points 2 and 3 above to FIFA to the e-mail address [email protected], duly
translated, if need be, into one of the official FIFA languages (English, French,
German, Spanish).
7.
In the event that the amounts due in accordance with points 2 and 3 above are 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 Respondent shall be banned from
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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 (cf. art. 24bis of the Regulations on the Status and Transfer of
Players).
8.
The ban mentioned in point 7 above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
9.
In the event that the aforementioned sums are 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 FIFA’s Disciplinary Committee for consideration and a
formal decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or
the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber).
Note relating to the m otiv ated decision (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS. Within
another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal
with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2, CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Theodore Bernard Mendy, Senegal / Club Afjet Afyonspor, Turkey
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