Labour Disputes
Texto da decisão
REF. FPSD-6565
Decision of the
Dispute Resolution Chamber
passed on 26 May 2023
regarding an employment-related dispute concerning
the player Kossi Prince Segbefia
COMPOSITION:
Frans de Weger (The Netherlands), Chairperson
Roy Vermeer (The Netherlands), member
Mario Flores Chemor (Mexico), member
CLAIMANT:
Kossi Prince Segbefia, Togo
Represented by Selçuk DEMIR
RESPONDENT:
Altay SK, Turkey
Represented by Ercan Sevdimbaş
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REF. FPSD-6565
I. Facts of the case
1.
On an unspecified date, the Togolese player, Kossi Prince Segbefia (hereinafter: the player
or the Claimant) and the Turkish club, Altay SK (hereinafter: the club or the Respondent)
concluded an employment contract, valid as from 31 January 2020 and until 31 May 2021.
2.
Clause 3 of the contract provides that, should the club promote to the Super Lig at the end
of either the 2019/2020 or the 2020/2021 season, the parties agreed on an extension
option, the contract extending its effects until 31 May 2022. In particular, the said clause
states that the said extension option is unilateral (being initiated by the club) and would
have effects should the club, the player and the Turkish association “deem it necessary” (free
translation from the original text in French) and if the parties notify the extension to the
Turkish FA through the services of a notary public.
3.
Also according to clause 3 of the contract, the club undertook to pay to the player the total
fixed amount of EUR 450,000 during the 2021/2022 season, should the extension option
be exercised.
4.
On 20 August 2020, the player notified Altay of the premature termination of the
employment contract due to overdue payables.
5.
On 28 August 2020, the player initiated a new employment relationship with the
Turkish club, Tuzlaspor valid until 31 May 2021, whereby the player was entitled to a total
salary of EUR 50,000.
6.
On 23 September 2020, the player filed a claim against Altay before the FIFA Dispute
Resolution Chamber (DRC). Accordingly, he requested to be awarded outstanding
remuneration and compensation for breach of contract. The case was filed under ref. no.
20-01371.
7.
On 25 March 2021, the DRC issued its decision in connection to the abovementioned case,
the grounds of which were notifed to the parties on 4 June 2021 (hereinafter: the
DRC Decision).
8.
In accordance with the DRC Decision, Altay was deemed liable for breach of contract
and ordered to pay the player EUR 95,000 as outstanding remuneration plus EUR
180,000 as compensation for breach of contract.
9.
Specifically regarding the compensation, the DRC Decision stated the following vis -à-vis
the content of art. 17 of the FIFA Regulations on the Status and Transfer of Players (RSTP):
a.) the residual value of the employment contract with Altay amounted to EUR
180,000;
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REF. FPSD-6565
b.) the player was able to mitigate his damages with Tuzlaspor, earning EUR 50,000
for the overlapping period in accordance with the employment agreement signed
between the parties. Consequently, the mitigated compensation amounted to
EUR 130,000;
c.) due to the fact that the termination took place due to overdue payables, the
player would be entitled to additional compensation equivalent to 3 monthly
salaries of EUR 62,500;
d.) however, taking into consideration that the final compensation could not exceed
the residual value of the employment contract, Altay would in fact be liable to pay
the player EUR 180,000 as compensation for breach of contract plus 5% interest
p.a. as from the date of the claim.
10. According to the information contained in the Transfer Matching System (TMS), the
2020/2021 season in Türkiye ended on 4 July 2021.
11. By means of his letter dated 3 June 2022, the player put the club in default of payment in
the amount of EUR 450,000, corresponding to the value of the contract for the season
2021/2022, thereby granting the club a 15 days’ deadline to pay the said amount; to no
avail
II. Proceedings before FIFA
a. Position of the Claimant
12. On 29 June 2022, the player lodged a claim against the club before FIFA, requesting to be
awarded a compensation for breach of contract and damages in the total amount of EUR
630,000, plus 5% interest p.a. as from the 30th day following the notification of the decision
to be issued within the present proceedings, broken down by the Claimant as follows:
Compensation for breach of contract: EUR 450,000
-
EUR 450,000 corresponding to the whole fixed value of the contract for the season
2021/2022.
Compensation for damages: EUR 180,000
-
EUR 180,000 as compensation for damages “corresponding to 6 monthly salaries”.
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REF. FPSD-6565
13. In his claim, the player argued that due to the premature termination of the contract, which
was made with just cause by the player as acknowledged by the DRC in the DRC Decision,
he was deprived of the additional year of contract, i.e. the premature termination of the
contract prevented the extension of the contract (to 31 May 2022) from being exercised.
14. Hence, the player argues that he shall not bear the consequences of the premature
termination of the contract and the club shall be ordered to pay the residual value of the
contract as if the contract had been extended.
b. Position of the Respondent
15. In its reply, as to the competence, the Respondent argued that the Claimant’s claim shall
be considered inadmissible, insofar as the Claimant already requested his outstanding
remuneration, compensation for breach of contract and damages in his previous claim (ref.
no. 20-01371).
16. As to the substance, the club maintained that the contract did not foresee any automatic
extension of the contract for the 2021/2022 season upon the club’s promotion. On the
contrary, maintained the Respondent, should the club promote, the extension option had
to be notified by the club to the player and the Turkish FA, which did not occur, as the club
did not exercise the extension option.
17. The Respondent also underscored that, by prematurely terminating the contract in August
2020, the player himself also desisted from any potential extension of the contract.
18. In view of the above, the Respondent requested the claim of the Claimant be rejected.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. 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 29 June 2022 and submitted
for decision on 26 May 2023. Taking into account the wording of art. 34 of the March 2023
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.
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REF. FPSD-6565
20. Subsequently, the members of the Chamber 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 (March 2022 edition), the Dispute
Resolution Chamber is, in principle, competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
player from Togo and a club from Türkiye.
21. However, the Chamber noted that the Respondent argued that the claim is inadmissible,
implying that it is affected by res judicata effects. In this respect, the DRC noted that the
proceedings with ref. no. 20-01371 were initiated in September 2020 and finalized with the
DRC Decision, the grounds of which were notifed to the parties on 4 June 2021.
22. In this context and considering that the event giving rise to the dispute (at least concerning
the extension of the contract is concerned) occurred by the end of the 2020/2021 season
(July 2021), i.e. the promotion of the club to Super Lig, the DRC determined that the present
claim is not affected by res judicata effects, as the Claimant, back in September 2020, was
in no position to claim that the extension of the contract would apply following the club’s
promotion.
23. As to the claim for damages – as argued by the Respondent – it was already requested in
the previous claim. However, explained the Chamber, the Claimant failed to elaborate on
the circumstances eventually motivating his alleged entitlement to any such compensation
for damages, reason why the DRC cannot come to a conclusion as to whether there is
identity of petitum.
24. Hence, the claim of the Claimant is entirely admissible – concluded the Chamber.
25. 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 Players (March 2023 edition) and
considering that the present claim was lodged on 29 June 2022, the March 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
26. The Chamber 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 Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
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REF. FPSD-6565
c. Merits of the dispute
27. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. 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.
i. Main legal discussion and considerations
28. The foregoing having been established, the Chamber moved to the substance of the matter
and underscored that extension option clause is pathological at its source. In this respect,
the Chamber noted that, on the one hand, it provides an objective condition precedent (the
club’s promotion to Super Lig ; by the end of the 2020/2021, in casu); and, on the other
hand, a subjective element (the club’s unilateral decision to extend the contract).
29. On this note, the DRC explained that unilateral extension options are, in principle, not valid,
as they would grant one party the right to alter the contractual conditions without
considering the counterparty’s will, which would in principle render (at least that part of
the clause) null and void. Another discussion, pointed out the Chamber, would be if the
nullity of that part of the clause would drag along the objective element therein contained,
rendering the whole clause null and void, or if – on the contrary – the objective part of the
clause would subsist and, upon the occurrence of its objective condition precedent, the
clause would be validly activated, triggering the extension option.
30. However the outcome of that theoretical discussion would be, emphasized the Chamber,
the following aspects must be considered:
A. Even though the termination of the contract was made by the player with just cause (as
stated in the DRC Decision), the player decided to put an end to his contract with the
Respondent in August 2020 and sign a contract with a new club (8 days thereafter),
thereby implicitly refusing to continue his contractual relationship with the club, be it
until the end of the 2020/2021 season or until 31 May 2022.
B. What is more, by terminating the contract on 20 August 2020, the player did not play
any single match with the Respondent club during the whole 2020/2021 season, which
started on 11 September 2020, and – hence – the player did not contribute to the
promotion of the club at the end of the said season, which was the objective event
triggering the extension option.
C. To state that the player would have stayed with the club for one more season (even
though the player should have given his acceptance thereto, as unilateral extension
options are not valid) would be rather speculative.
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REF. FPSD-6565
31. In view of all of the above, the DRC concluded that the player is not entitled to any
compensation for breach of contract derived from the activation of the extension option
as the term of the contract was, in fact, not extended.
32. As for the compensation for damages, it shall be rejected, explained the Chamber, as it
lacks a contractual basis and the Claimant has failed to demonstrate his entitlement to it.
ii. Consequences
33. Having stated the above, the members of the Chamber decided that the claim of the
Claimant must be rejected.
d. Costs
34. The Chamber 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 Chamber decided that no procedural costs were to be
imposed on the parties.
35. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
36. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-6565
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Kossi Prince Segbefia, is admissible.
2.
The claim of the Claimant is rejected.
3.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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 Governing the Football
Tribunal).
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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