Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 20 February 2020,
in the following composition:
Clifford Hendel (USA), Deputy Chairman
Roy Verm eer (The Netherlands ), member
Daan De Jong (The Netherlands ), member
on the claim presented by the player,
Geoffrey Mujangi Bia, Belgium,
represented by Mr Lucien Valloni
as Claimant
against the club,
Kay s eris por Kulübü, Turkey
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 30 June 2017, the player, Geoffrey Mujangi Bia (hereinafter: the player or the
Claimant), concluded an employment contract with the Turkish club, Kayserispor Kulübü
(hereinafter: the club or the Respondent), valid as from 30 June 2017 “and be effective
during the football seasons of 2017/2018, 2018/2019 and 2019/2020”.
2.
According to the contract, the player was entitled to an amount of EUR 650,000 for the
2018/2019 season and EUR 700,000 for the 2019/2020 season.
3.
On 21 May 2018, the parties concluded a settlement agreement titled “Protocol”
(hereinafter: the protocol) according to which, the parties agreed on a mutual
termination of the contract.
4.
The protocol stipulated the following:
“1. The Parties agree to terminate the Contract, with their mutual consents and accords
regardless of the name under which without claiming any remuneration and
compensation from each other except for this Protocol. In conjunction with the signing
of this Protocol, the Contract will immediately be ended with all effects and
consequences and also any agreement, protocol and/or consensus, which determined
employment relationship between the Parties, become invalid. The Player accepts,
declares and undertakes, by reason of the employment relationship with KAYSERISPOR
and regardless of the name under which, there is not any rights and receivables from
KAYSERISPOR, to waive from the compensation and any other claims irrevocably, to
absolve the KAYSERISPOR completely, absolute and irrevocably.”
“2. The Parties agree that as of the date of 31.05.2018, the Player is entitled to get
totally net 250.000,00-Euro (Two Hundred Fifty Thousand Euros). Furthermore, the
Parties fully agree that KAYSERISPOR shall pay to the Player in the amount of
350.000,00-Euro (Three Hundred Fifty Thousand Euros) as the compensation for the
early termination of the Contract. Consequently, taking into consideration these
amounts, KAYSERISPOR shall pay to the Player in the amount of 600.000,00-Euro (Six
Hundred Thousand Euros) in total with regard to the total receivables of the Player and
compensation, which have been determined in this article as shown below:
-
200.000,00-Euro […]: On the date of signing of this Protocol
100.000,00- Euro […]: On 10.08.2018
100.000,00-Euro […]: On 01.09.2018
50.000,00-Euro […]: On 20.09.2018
50.000,00-Euro […]: On 05.10.2018
100.000,00-Euro […]: On 25.10.2018
Player Geoffrey Mujangi Bia, Belgium / Club Kayserispor Kulubu, Turkey
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With the fulfillment of these payments, the Player releases to the Club for all the
obligations set forth in the aforesaid Contract irrevocably and absolute.”
“6. The Contract concluded between the parties was terminated with immediate effect
as of the signing of this Protocol.”
5.
On 31 October 2018, the player put the club in default for the payment of EUR 400,000,
corresponding to the last five instalments of the protocol. In the same letter, the player
warned the club that if the amount is not paid by 15 November 2018, the Protocol shall
be considered not valid and the employment contract will “be still in full force”.
6.
On 15 November 2018, the club replied to the default notice and stated that it has
provided the player with 5 promissory notes for the remaining 5 installments. Moreover,
the club deemed that for 2 promissory notes, each in the amount of EUR 50,000 an
executive proceeding has been started and therefore, in accordance with Turkish law,
these amounts cannot be paid to the bank account of the player. For the rest of the
amounts, the club requested the player to deliver back the promissory notes in order to
pay the amounts to the player.
7.
On 9 January 2019, the player put the club again in default and requested the payment
of EUR 300,000 and offered to send the promissory notes back to the club upon
payment.
8.
On 25 April 2019, the player put the club in default for payment of the amount of EUR
400,000.
9.
In its reply to said letter, the club again requested the return of the promissory notes in
order to pay the amount.
10.
On 16 May 2019, the player lodged a claim against the club in front of FIFA requesting
the following:
11.
-
EUR 510,000 corresponding to the due amounts in accordance with the employment
contract (see above), plus 5% interest p.a. as from 16 May 2019;
-
Alternatively, EUR 400,000, corresponding to the unpaid part of the protocol, plus
5% interest as from the due dates.
In his claim, the player deemed that by not complying with the protocol, the protocol
became invalid and in accordance with art. 2 of the protocol the employment contract
shall be considered to be in full force.
Player Geoffrey Mujangi Bia, Belgium / Club Kayserispor Kulubu, Turkey
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12.
Therefore, the player deemed that he is entitled to the residual amounts pursuant to
the contract, which according to the player is EUR 710,000, corresponding to the
following:
-
EUR 100,000 as advanced payment;
EUR 495,000 as monthly salaries as from August 2018 to April 2019;
EUR 20,000 as the expenses for flight tickets for the 2017/2018 season;
EUR 20,000 as the expenses for flight tickets for the 2018/2019 season ;
EUR 75,000 as non-relegation bonus for the 2017/2018 season;
13.
The player acknowledged to have received a payment in the amount of EUR 200,000, in
accordance with the first instalment of the protocol, and therefore deemed that the
due amount is EUR 510,000.
14.
Alternatively, the player requested to be paid the residual value of the Protocol, which
amounts to EUR 400,000.
15.
In its reply to the claim, the club argued that the parties mutually agreed to terminate
the contract by signing the protocol and therefore, the employment relationship
between the parties has ended on 21 May 2018.
16.
Moreover, the club deemed that it paid EUR 200,000 for the first installment and
provided the player with 5 promissory notes for the amount of the residual value of the
protocol. The club further stated that it has informed the player several times that it is
willing to pay the outstanding amount, however only in exchange to the original
promissory notes.
17.
In addition, the Respondent deemed that 2 promissory notes have been delivered to 3rd
persons and therefore “the player has lost his rights to demand of the payments of these
2 (two) promissory notes”.
18.
Consequently, the club requested to reject the player’s claim. Alternatively, it asked to
decide that the due amount is EUR 300,000 and that the player shall return the original
promissory notes to the club.
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 16 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
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules
is applicable to the matter at hand.
Player Geoffrey Mujangi Bia, Belgium / Club Kayserispor Kulubu, Turkey
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2.
Subsequently, the members of 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- dispute with an international dimension between a Belgian
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, it 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 present claim was lodged on 16 May 2019, the June 2018
edition of the said Regulations (hereinafter: 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 aforementioned facts as well as the
arguments and documentation submitted by the parties. The Chamber, however,
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 acknowledged that the Claimant and the Respondent signed
an employment contract valid, as from 30 June 2017 until the end of the football season
2019/2020, in accordance with which the Claimant was entitled to a total remuneration
as indicated in point I. 2.
6.
In addition, the DRC took note that on 21 May 2018 the parties mutually terminated
the employment contract by signing the document titled “Protocol”. In accordance with
said protocol, the player was entitled to, inter alia, a payment in the amount of EUR
600,000 as indicated in point. I.4.
7.
Moreover, the members of the DRC acknowledged that it was undisputed that the
Respondent made a payment of EUR 200,000 as well as providing the Claimant with 5
promissory notes in the amount of EUR 400,000.
8.
The Chamber then reviewed the claim of the Claimant who requested the payment of
the residual amount of the employment contract in the total amount of EUR 510,000
considering that the protocol has become null and void due to the Respondent’s noncompliance with the terms as agreed in art. 2 of the protocol.
9.
The Chamber also took into account the Claimant’s alternative claim for the amount of
EUR 400,000, corresponding to the unpaid part of the amounts as stipulated in the
protocol.
Player Geoffrey Mujangi Bia, Belgium / Club Kayserispor Kulubu, Turkey
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10.
Furthermore, the members of the DRC observed that, for its part, the Respondent held
that the employment contract was mutually terminated by the signature of the protocol
and that no amounts relating to the employment contract are due. Moreover, the
Chamber took note of the Respondent’s argument that it provided the player with 5
promissory notes in the amount of EUR 400,000 and that it was willing to pay the
outstanding amounts if the player would return the original promissory notes.
11.
At this stage, taking into account the positions of the parties, the members of the
Chamber first analysed the clauses stipulated in the protocol and pointed out that the
protocol did not contain any clause which would deem the protocol null and void in
case the amounts were not paid to the player. Therefore, the DRC concluded that the
player is not entitled to any amounts in accordance with the employment contract.
12.
Having established the above, the Chamber determined that, since in principle the
Claimant would be entitled to all the amounts he requested in accordance with the
protocol, the main issue at stake was to evaluate if the Respondent had to pay the
requested amounts directly to the Claimant, or if it had valid reasons not to so.
13.
In this regard, the Chamber analysed art. 2 of the protocol and noted that said article
did not foresee any alternative payment of the due amounts, in particular, the payment
in promissory notes.
14.
With due consideration to the above, the DRC noted that it was undisputed between
the parties that the amount of EUR 400,000 had not yet been paid and that the only
reason for the non-payment was that the promissory notes have not been returned by
the Claimant.
15.
On account of the aforementioned consideration, the Chamber established that the
Respondent had failed to pay to the Claimant the total amount of EUR 400,000 and
that, consequently, the Respondent is liable to pay the Claimant the amount of EUR
400,000. Equally, the DRC decided that the Claimant has to return to the Respondent
the original promissory notes.
16.
In addition, taking into account the player’s request and the DRC’s well-established
jurisprudence, the Chamber decided that the club must pay to the player interest of 5%
p.a. on the amounts of 400,000 until the date of effective payment as follows:
a.
b.
c.
d.
e.
on the amount of EUR 100,000 as of 11 August 2018;
on the amount of EUR 100,000 as of 2 September 2018;
on the amount of EUR 50,000 as of 21 September 2018;
on the amount of EUR 50,000 as of 6 October 2018;
on the amount of EUR 100,000 as of 26 October 2018.
Player Geoffrey Mujangi Bia, Belgium / Club Kayserispor Kulubu, Turkey
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17.
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.
18.
In this regard, the Chamber established that, in virtue of the aforementioned provision,
it has competence to impose a sanction on the Respondent. More in particular, the DRC
pointed out that, against clubs, the sanction shall consist in a ban 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.
19.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amount 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.
20.
Furthermore, the Chamber recalled that the above-mentioned sanction 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.
21.
Finally, the DRC concluded its deliberations in the present matter by establishing that
any further claim lodged by the Claimant is rejected.
Player Geoffrey Mujangi Bia, Belgium / Club Kayserispor Kulubu, Turkey
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III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Geoffrey Mujangi Bia, is partially accepted.
2.
The Respondent, Kayserispor Kulübü, has to pay to the Claimant outstanding
remuneration in the amount of EUR 400,000, plus 5% interest p.a. until the date of
effective payment,as follows:
a) on the amount of EUR 100,000 as of 11 August 2018;
b) on the amount of EUR 100,000 as of 2 September 2018;
c) on the amount of EUR 50,000 as of 21 September 2018;
d) on the amount of EUR 50,000 as of 6 October 2018;
e) on the amount of EUR 100,000 as of 26 October 2018.
3.
Any further claim lodged by the Claimant is rejected.
4.
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 point 2. above.
5.
The Respondent shall provide evidence of payment of the due amounts in accordance
with point 2. 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).
6.
In the event that the amounts due in accordance with points 2. 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 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).
7.
The ban mentioned in point 6. above will be lifted immediately and prior to its complete
serving, once the due amounts are paid.
8.
In the event that the aforementioned amounts 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.
Player Geoffrey Mujangi Bia, Belgium / Club Kayserispor Kulubu, Turkey
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9.
The Claimant is ordered to return the relevant promissory notes to the Respondent
w ithin 45 day s as from the date of notification.
*****
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
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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 Geoffrey Mujangi Bia, Belgium / Club Kayserispor Kulubu, Turkey
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