Labour Disputes
Texto da decisão
REF FPSD-3657
Decision of the
Dispute Resolution Chamber
passed on 15 December 2021
regarding an employment-related dispute concerning the player
Kossi Prince Segbefia
BY:
Michelle Colucci (Italy)
CLAIMANT:
Kossi Prince Segbefia, Togo
Represented by Selçuk Demir
RESPONDENT:
Tuzlaspor, Turkey
Represented by Ercan Sevdimba
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REF FPSD-3657
I.
Facts of the case
1.
On 28 August 2020, the Togolese player Kossi Prince Segbefia (hereinafter the Claimant or the
player) and the Turkish club Tuzlaspor (hereinafter the Respondent or the Club) concluded two
agreements valid for the sporting season 2020/2021.
2.
In the first agreement (hereinafter the First Agreement), the Claimant and the Respondent
(hereinafter the Parties) agreed upon the following financial terms:
-
“5.000,- EUR on 30.09.2020,
5.000,- EUR on 31.10.2020,
5.000,- EUR on 30.11.2020,
5.000,- EUR on 31.12.2020,
5.000,- EUR on 31.01.2021,
5.000,- EUR on 28.02.2021,
5.000,- EUR on 31.03.2021,
5.000,- EUR on 30.04.2021,
5.000,- ElJR on 31.05.2021,
5.000,- EUR on 30.06.2021,
If the Club promotes to the Super League at the end of the 2020/2021 footbal season, the Player
will be entitled to receive 50.000,-EUR championship bonus according to the match appearance
number of the Player (pro-rata temporis)”
3.
The second agreement named “Professional Football Player’s Image Right Contract” (hereinafter
the Second Agreement) established as follows:
“1. The Player hereby agrees and accept to transfer the right to economic exploitation of his
image rights to the club for the duration of the employment contract
2. The Player hereby guarantees that he is the sole owner of his image rights and no other
personnal or legal entity has any ownership on these rights
3.The Player consents to the exclusive exploitation by the club of his image rights and accepts,
in return, a fixed remuneration linked to the exploitation of his image rights.”
4.
Clause 4 of the Second Agreement stipulated that the financial compensation shall amount to
EUR 50,000, payable in ten equal instalments as follows:
-
“5 000 euros on 30 september 2020
5 000 euros on 31 october 2020
5 000 euros on 30 november 2020
5 000 euros on 31 december 2020
5 000 euros on 31 january 2021
5 000 euros on 28 february 2021
5 000 euros on 31 march 2021
5 000 euros on 30 april 2021
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- 5 000 euros on 31 may 2021
- 5 000 euros on 30 june 2021”
5.
The same Clause of the Second Agreement further established the following:
“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 30 (thirty) days then the
Player shall have the option to terminate the contract.
In order to exercise this option, the Player shall first send a written notification via e-mail to the
Club and if the Club fails to pay the amount due to the Player within 15 (fifteen) days after the
receipt by the Club of the respective notification, the Player shall be free to terminate the
Contract.
in the event of termination of the contract, the club must pay the full amount stated on the
contract.
In this case, the Player shall be entitled to take action before FIFA bodies to settle the dispute.”
(emphasis added)
6.
On 18 June 2021, the Claimant put the Respondent in default for the payment of the outstanding
payments in the total amount of EUR 55,000, providing it a 15 days’ deadline to remedy its default,
however to no avail.
II. Proceedings before FIFA
7.
On 13 September 2021, 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
8.
In his claim, the Claimant requested the payment of EUR 55,000 “for the amounts not paid under
the agreements that bind the parties” and the amount of EUR 60,000 as “damages for the breach
of the said agreements.”
9.
The Claimant based his request regarding EUR 55,000 on the legal principle pacta sunt servanda.
10. Furthermore, he alleged that the Respondent “has acted in bad faith in failing to comply with all
the provisions of an agreement that it signed.”
11. In view of the above, the Claimant requested the amount of EUR 60,000, i.e. six monthly salaries
“in line with art. 17 para. 1 RSTP”.
b. Position of the Respondent
12. The Respondent rejected the claim of the Claimant.
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13. It argued that FIFA has merely jurisdiction over the First Agreement and “is not competent to
exercise of jurisdiction of the contract which is about the image right of the Player [Second
Agreement].”
14. In light of the above, the Respondent alleged that the Claimant “was only entitled to 50.000.EUR
in total for the 2020/2021 football season under the [First Agreement]. For that reason,
considering the payments made by the Respondent Club with the amount of 35.000.-EUR the
remaining unpaid salary of the Claimant Player is equal to 15.000,-EUR in lieu of 55.000,-EUR.
Because the contractual decided amount is 50.000,-EUR in total for the football activities for
2020/2021 football season, not 100.000,-EUR.”
15. Concerning the claimed compensation of EUR 60,000, the Respondent rejected the arguments of
the Claimant and argued that “there is no termination of the Contact.”
c. Comments of the Claimant
16. After the closure of the submission phase, the Claimant was requested to comment if he received
the sum of EUR 35,000 by the Respondent.
17. The Claimant indirectly confirmed to have received the payment by submitting the following:
“The TUZLASPOR club admits that it has only paid the sum of 35,000 euros in its submissions to
your Chamber, and has therefore failed to pay the sum of 65,000 euros as part of the agreements
provided for.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as the
Single Judge) analysed whether he was competent to deal with the case at hand. In this respect,
he took note that the present matter was presented to FIFA on 13 September 2021 and submitted
for decision on 15 December 2021. Taking into account the wording of art. 34 of the October 2021
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.
19. Subsequently, the Single Judge 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 lit. b) of the Regulations on the Status
and Transfer of Players (August 2021 edition), he is competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between a
Togolese player and a Turkish club.
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20. In continuation, with regard to the claimed payments in connection to the Second Agreement,
the Single Judge had to verify whether, for formal reasons, it was competent to deal with this
specific component or not. In fact, it remains that this part of the claim could possibly not be
considered due to the FIFA’s lack of competence to deal with disputes related to image rights.
21. While analysing whether it was competent to hear this part of the claim, the Single Judge, without
entering into any discussion regarding the actual name of the Second Agreement, which defines
the agreement as an image rights agreement, wished to highlight that said agreement contained
elements which led to believe that it was not in fact an image rights agreement, but rather a
separate agreement to the employment contract, i.e. directly linked to the services of the
Claimant as a player.
22. In particular, the Clause 4 of the Second Agreement represents a jurisdiction clause in favour of
FIFA: “(…) the Player shall be entitled to take action before FIFA bodies to settle the dispute.”
23. In view of all the above, the Single Judge established that the Second Agreement is to be
considered, meaning that it is in a position to take it into consideration the relevant agreement
when assessing the Claimant’s claim.
24. Finally, the Single Judge analysed which regulations should be applicable as to the substance of
the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Player (August 2021 edition) and considering that the
present claim was lodged on 13 September 2021, the August 2021 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
25. The Single Judge 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 Single Judge stressed the wording of
art. 13 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by
the parties, including without limitation the evidence generated by or within the Transfer
Matching System (TMS).
c. Merits of the dispute
26. His competence and the applicable regulations having been established, the Single Judge entered
into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However, the
Single Judge emphasised that in the following considerations, he will refer only to the facts,
arguments and documentary evidence, which he considered pertinent for the assessment of the
matter at hand.
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i. Main legal discussion and considerations
27. The foregoing having been established, the Single Judge moved to the substance of the matter
and took note of the fact that the parties dispute the payment of certain financial obligations by
the Respondent as per the Agreements.
28. In this context, the Single Judge acknowledged that his task was to determine, based on the
evidence presented by the Parties, whether the claimed amounts had in fact remained unpaid by
the Respondent and, if so, whether the latter had a valid justification for not having complied with
its financial obligations, whereas in the case at hand the Respondent bore the burden of proving
that it indeed complied with the financial terms of the Agreements concluded between the
Parties.
29. In continuation, the Single Judge recalled that that the Parties to the dispute had signed the First
Agreement as well as the Second Agreement, both dated 28 August 2020, in accordance with
which the Claimant was entitled to receive, inter alia, the total amount of EUR 100,000 as
remuneration for the sporting season 2020/2021, i.e. until 30 June 2021.
30. The Single Judge then turned his attention to the fact that it remained uncontested by the Parties
that the amount of EUR 35,000 was duly paid by the Respondent. The Single Judge further noted
that the payment was allocated by the Respondent to the First Agreement as the latter never
commented on payments made in accordance with the Second Agreement, wrongly considering
that that FIFA has no jurisdiction over the matter.
31. Finally, the Single Judge noted that the Respondent did not provide any other reasonable
justification for not having complied with the terms of the Agreements.
ii. Consequences
32. Considering the above, the Single Judge further acknowledged that the Claimant in his default
notice, as well as in his request for relief consistently requested the outstanding amount of
EUR 55,000 based on the First and the Second Agreement.
33. At the same time, the Single Judge observed that when asked for comments on the alleged
payments of EUR 35,000, the Claimant suddenly alleged that he shall be entitled to EUR 65,000.
34. In this context, the Single Judge turned his attention to art. 18 para. 1 lit. d) of the Procedural
Rules and concluded that it was up to the Claimant to provide a clear break down of the
outstanding remuneration when lodging the claim.
35. For the sake of completeness, the Single Judge pointed that the investigation was already closed
at the time when FIFA Administration requested the comments in accordance with art. 23 para. 2
of the Procedural Rules and added that after such notification, the Parties may not supplement or
amend their submissions or requests for relief (see art. 23 para. 1 of the Procedural Rules).
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36. Therefore, the Single Judge concluded that merely the amount of EUR 55,000 shall be considered
as disputed in the proceeding at the matter at hand.
37. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda, which
in essence means that agreements must be respected by the parties in good faith, the Single
Judge ruled that the Respondent shall be held liable to pay the Claimant the outstanding amounts
deriving from the Agreements concluded between the Parties, namely EUR 55,000.
38. Considering the request for relief, the Single Judge concluded that no interest shall be applicable
at the matter at hand.
39. Finally, the Single Judge concluded his deliberations by rejecting the request for compensation of
EUR 60,000 as no termination occurred at the matter at hand and the said Agreements expired
naturally.
iii. Compliance with monetary decisions
40. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24 par. 1
and 2 of the Regulations, which stipulate that, with his 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.
41. In this regard, the Single Judge 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.
42. Therefore, bearing in mind the above, the Single Judge 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. 24 par. 2, 4, and 7 of the Regulations.
43. The Respondent shall make full payment to the bank account provided by the Claimant in the
Bank Account Registration Form, which is attached to the present decision.
44. The Single Judge 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. 24 par. 8 of the
Regulations.
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d. Costs
45. The Single Judge 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 Single Judge decided that no procedural costs were to be imposed on the
parties.
46. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25 par. 8
of the Procedural Rules, and decided that no procedural compensation shall be awarded in these
proceedings.
47. Lastly, the Single Judge concluded his 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, Kossi Prince Segbefia, is partially accepted.
2.
The Respondent, Tuzlaspor, has to pay to the Claimant EUR 55,000 as outstanding remuneration.
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.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 2021 edition),
if full payment (including all applicable interest) is not made within 45 days of notification of this
decision, the following consequences shall apply:
1.
2.
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 the ban shall be
of up to three entire and consecutive registration periods.
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 made by the end of
the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance with art.
24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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