Dispute Resolution Chamber
Texto da decisão
REF 20-01371
Decision of the
Dispute Resolution Chamber
passed on 25 March 2021
regarding an employment-related dispute concerning the player SEGBEFIA Prince
COMPOSITION:
Omar Ongaro (Italy), Chairman
Alexandra Gómez Bruinewoud (Uruguay/Netherlands), member
Daan de Jong (Netherlands), member
CLAIMANT:
SEGBEFIA Prince, Togo
Represented by Mr Selçuk Demir
RESPONDENT:
Altay Spor Kulubu Denergi, Turkey
Represented by Mr Talat Emre Koçak
Page 2 of 11
REF 20-01371
I.
FACTS OF THE CASE
1.
The Togolese player, Prince Segbefia (hereinafter: player or Claimant) and the Turkish club,
Altay Spor Kulübü Dernegi (hereinafter: club or Respondent) concluded an employment
contract (hereinafter: contract) valid as from 1 January 2020 until 31 May 2021.
2.
The contract contained a unilateral option for the club to extend the contract for one more
season if the club promoted to the Super Lig at the end of the season 2019/2020 (between
15 April 2020 and 30 May 2020) or at the end of the season 2020/2021 (between 15 April
2021 and 30 May 2021). Equally, the contract provides that if the club is not promoted to
the Super Lig, the contract will come to an end without further notice at the end of the
season 2020/2021.
3.
Art. 3 of the contract provides the following financial conditions:
Season 2019/2020: EUR 25,000 payable in 5 instalments of EUR 5,000 each
between 1 February 2020 and 1 June 2020,
Season 2020/2021: EUR 250,000 payable as follows:
o EUR 50,000 due on 31 July 2020,
o EUR 200,000 payable in ten instalments of EUR 20,000 each between 1
August 2020 and 1 May 2021,
Season 2021/2022 (should the club exercise the option): EUR 450,000 payable as
follows:
o EUR 150,000 due on 31 July 2021,
o EUR 300,000 payable in ten instalments of EUR 30,000 each between 1
August 2021 and 1 May 2022.
Bonus payments:
o A. if during the season 2019/2020 the player is a starter 11 in at least 10
matches in the TFF 1. Lig, the player will receive EUR 30,000,
o B. if during the season 2019/2020 the player is a starter 11 in at least 20
matches in the TFF 1. Lig, the player will receive EUR 50,000,
o C. if during the season 2019/2020 the player is a starter 11 in at least 30
matches in the TFF 1. Lig, the player will receive EUR 100,000,
o D. if the player plays in the number of matches indicated in points A, B or
C above, the player will only be entitled to the higher amount and the lower
amounts will not be due,
o E. if during the season 2020/2021 the player is a starter 11 in at least 10
matches in the Super Lig, the player will receive EUR 50,000,
o F. if during the season 2020/2021 the player is a starter 11 in at least 20
matches in the Super Lig, the player will receive EUR 100,000,
o G. if during the season 2020/2021 the player is a starter 11 in at least 20
matches in the Super Lig, the player will receive EUR 150,000,
Page 3 of 11
REF 20-01371
o H. if the player plays in the number of matches indicated in points E, F or G
above, the player will only be entitled to the higher amount and the lower
amounts will not be due,
o I. if during the season 2021/2022 the player is a starter 11 in at least 10
matches in the Super Lig, the player will receive EUR 50,000,
o J. if during the season 2021/2022 the player is a starter 11 in at least 20
matches in the Super Lig, the player will receive EUR 100,000,
o K. if during the season 2021/2022 the player is a starter 11 in at least 20
matches in the Super Lig, the player will receive EUR 150,000,
o L. if the player plays in the number of matches indicated in points I, J or K
above, the player will only be entitled to the higher amount and the lower
amounts will not be due.
4.
On 3 August 2020, the player put the club in default of payment of EUR 95,000
representing salaries for the months of February, March, April and May 2020, the advance
payment due on 31 July 2020 as well as the salary for August 2020. The player granted the
club a deadline of 15 days to remedy the default.
5.
On 20 August 2020, the player sent a letter to the club informing the latter of the unilateral
termination of the contract in light of the unpaid remuneration.
6.
Following the termination of the contract, on 28 August 2020, the player signed a contract
with another Turkish club, Tuzlaspor, valid until 31 May 2021. According to this contract,
the player was entitled to a total salary of EUR 50,000.
II.
PROCEEDINGS BEFORE FIFA
7.
On 23 September 2020, the Claimant filed a claim for outstanding remuneration and
compensation for breach of contract against the Respondent before FIFA. The Respondent
has not replied to the Claimant’s claim. A summary of the Claimant’s position is detailed
below.
a.
The claim of the Claimant
8.
According to the Claimant, he was the object of a discriminatory treatment from the club
since he did not receive any remuneration due under the contract since the start of the
employment relationship.
9.
The Claimant underlined that he had duly put the club in default and granted the latter a
deadline of 15 days to remedy the default, to no avail.
10.
Given these circumstances, the player was left with no other choice than to terminate the
contract.
Page 4 of 11
REF 20-01371
11.
The player deems that he terminated the contract with just cause in accordance with art.
14bis of the Regulations on the Status and Transfer of Players.
12.
Furthermore, the player claims that he suffered a moral damage as, following the unilateral
termination of the contract, and having no income, he was forced to sign a contract in a
haste. He was then only able to find a contract with the Turkish club, Tuzlaspor, which plays
in the Turkish 2nd division, and where he was earning 5 times less than with the club.
13.
In light of the above, the player made the following requests:
Outstanding remuneration:
Salaries for the season 2019/2020: EUR 25,000,
Salaries for the season 2020/2021: EUR 250,000 (Note: as specified above, the
player terminated the contract on 20 August 2020),
Compensation for breach of contract:
EUR 150,000 equivalent to 6 months of salary in view of the sporting and moral damage
Interest: 5% p.a. as from the date of notification of the decision, should the club not
proceed to the payment of any amounts awarded within 30 days of such notification
Sporting sanctions against the club
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
14.
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 23 September 2020 and
submitted for decision on 25 March 2021. Taking into account the wording of art. 21 of
the 2021 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.
15.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed 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 February 2021), 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 Togolese player
and a Turkish club.
Page 5 of 11
REF 20-01371
16.
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 Player (edition February 2021), and
considering that the present claim was lodged on 23 September 2020, the August 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
17.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
18.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
19.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. 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.
i. Main legal discussion and considerations
20.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute detail.
21.
In this context, the Chamber first acknowledged that the Claimant’s claim remained
uncontested given that the Respondent has not replied to it. Consequently and with
reference to art. 9 par. 3 of the Procedural Rules, the Chamber shall pass a decision on the
basis of the documents on file, i.e. those presented by the Claimant.
22.
In this regard, the Chamber acknowledged that the Claimant unilaterally terminated the
contract on 20 August 2020 after having put the Respondent in default regarding the
payment of his salaries of February, March, April and May 2020, the advance payment due
on 31 July 2020 as well as the salary for August 2020.
Page 6 of 11
REF 20-01371
23.
The Chamber noted that no explanation was provided as to the non-payment by the
Respondent of such remuneration.
24.
At this point, the DRC recalled that, in accordance with art. 14bis of the Regulations, in the
case of a club unlawfully failing to pay a player at least two monthly salaries on their due
dates, the player will be deemed to have a just cause to terminate his contract, provided
that he has put the debtor club in default in writing and has granted a deadline of at least
15 days for the debtor club to fully comply with its financial obligation(s).
25.
Having recalled the aforementioned provision, the DRC held that, at the time the player
terminated the contract, the club had undoubtedly failed to pay more than two monthly
salaries to him. Furthermore, prior to terminating the contract, the player had duly put the
club in default of payment of the relevant outstanding remuneration and granted the latter
15 days to remedy said default, to no avail.
26.
In view of the aforementioned considerations, the Chamber stated that, at the time of
terminating the contract, the Claimant’s confidence as to the continuation of the
employment relationship could have legitimately been lost.
27.
In conclusion, the DRC decided that the Claimant had terminated the contract on 20 August
2020 with just cause in accordance with art. 14bis of the Regulations. Consequently, the
Respondent is to held liable for the breach of contract.
28.
Prior to assessing the consequences of the early termination of the contract with just cause
by the Claimant, the DRC addressed the latter’s claim for outstanding remuneration. In this
regard, the Chamber held that the outstanding remuneration corresponds to any and all
amounts which the Claimant has not received and were due up until the date on which he
terminated the contract, i.e. until 20 August 2020.
29.
In this regard, regarding the outstanding amounts in the season 2019/2020, the Claimant
claims the total amount of EUR 25,000. In light of the fact that such claim remained
uncontested, the DRC decided to grant such amount to the Claimant.
30.
Furthermore, with respect to the outstanding amounts in the season 2020/2021 up until
the termination of the contract, the Chamber established that the advance payment due
on 31 July 2020 in the amount of EUR 50,000 was also outstanding, together with the
salary for August 2020.
31.
In view of the above, the Chamber concluded that the Respondent must pay the Claimant
the total amount of EUR 95,000 as outstanding remuneration in accordance with the
principle of pacta sunt servanda.
32.
Furthermore, in accordance with the Claimant’s respective claim as well as the constant
practice of the Chamber, 5% interest per annum shall apply on the said amount as from
Page 7 of 11
REF 20-01371
25 April 2021, i.e. 30 days after the passing of the present decision, until the date of
effective payment.
33.
In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent compensation for
breach of contract in addition to any outstanding remuneration on the basis of the relevant
employment contract.
34.
In this context, the Chamber outlined that, in accordance with 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.
35.
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 established that no such
compensation clause was included in the employment contract at the basis of the matter
at stake.
36.
Subsequently, and in order to evaluate the compensation to be paid by the Respondent,
the members of the Chamber took into account the remuneration due to the Claimant in
accordance with the employment contract as well as the time remaining on the same
contract, along with the professional situation of the Claimant after the early termination
occurred. In this respect, the Chamber pointed out that at the time of the termination of
the employment contract on 20 August 2020, the contract would run until 31 May 2021,
this is, for another 9 months. Consequently, taking into account the financial terms of the
contract, the Chamber concluded that the remaining value of the contract as from its early
termination by the Respondent until the regular expiry of the contract amounts to EUR
180,000. Such amount shall serve as the basis for the final determination of the amount of
compensation for breach of contract.
37.
In continuation, the Chamber remarked that following the early termination of the
employment contract at the basis of the present dispute, the Claimant was able to mitigate
his damage by concluding a new employment contract with the Turkish club, Tuzlaspor,
from 28 August 2020 until 31 May 2021. During this period, the Claimant earned a total
remuneration of EUR 50,000 with the latter club.
38.
In accordance with the constant practice of the Dispute Resolution Chamber and the
general obligation of the Claimant to mitigate his damages, such remuneration under the
new employment contracts shall be taken into account in the calculation of the amount of
compensation for breach of contract.
Page 8 of 11
REF 20-01371
39.
In view of the above, the mitigated compensation amounts to EUR 130,000.
40.
Furthermore, the DRC emphasised that, pursuant to art. 17 par. 1 lit ii. of the Regulations,
a player, in case of the early termination of the contract being due to overdue payables, in
addition to the mitigated compensation, shall also be entitled to an amount corresponding
to three monthly salaries (i.e. the additional compensation). What is more, in case of
egregious circumstances, the additional compensation may be increased to a maximum of
six monthly salaries. Finally, the overall compensation may never exceed the rest value of
the prematurely terminated contract.
41.
Bearing in mind the above, the DRC held that the Claimant would, on top of the mitigated
compensation, in principle be entitled to an additional compensation equivalent to 3
months of salaries, i.e. 3 x EUR 62,500 (average salary including the advance payment due
on 31 July 2020).
42.
This being said, the Chamber acknowledged that adding the mitigated compensation to
the additional compensation would exceed the residual value under the contract.
43.
In view of the above, the Chamber decided to award the Claimant the amount of EUR
180,000, which corresponds to the residual value of the contract.
44.
In conclusion, the Respondent must pay the Claimant compensation for breach of contract
in the amount of EUR 180,000, amount which is considered as reasonable and
proportionate in light of the specific circumstances surrounding the present matter.
45.
Furthermore, in accordance with the Claimant’s respective claim as well as the constant
practice of the Chamber, 5% interest per annum shall apply on the said amount as from
25 April 2021, i.e. 30 days after the passing of the present decision, until the date of
effective payment.
ii. Compliance with monetary decisions
46.
Finally, taking into account the consideration under number 54. 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.
47.
In this regard, the DRC 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 and for the maximum
duration of three entire and consecutive registration periods.
Page 9 of 11
REF 20-01371
48.
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, communicates the relevant bank details to the Respondent,
provided that the decision is final and binding, 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.
49.
The DRC recalled that the above-mentioned bans 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.
50.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Mr Prince Segbefia, is accepted.
2.
The Respondent, Altay SK, has to pay to the Claimant, Mr Prince Segbefia, the following
amounts:
- EUR 95,000 as outstanding remuneration plus 5% interest p.a. as from 25 April 2021
until the date of effective payment,
- EUR 180,000 as compensation for breach of contract plus 5% interest p.a. as from 25
April 2021 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 [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 within 45 days, 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
Page 10 of 11
REF 20-01371
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
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 Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 11 of 11