Labour Disputes
Texto da decisão
Decis ion of the
Dispute Resolution Chamber
passed on 26 March 2020,
in the following composition:
Clifford Hendel (USA), Deputy Chairman
Michele Colucci (Italy), member
Pav el Piv ov arov (Russia), member
on the claim presented by the player,
Vieux Yakhy a S ane, Senegal
represented by Mr Alexis Rutman
as Claimant / Counter-Respondent
and the club,
Burs as por Kulübü Dernegi, Turkey
represented by Adv. Jale Demir
as Respondent / Counter-Claimant
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 1 July 2016, the Senegalese player, Vieux Yakhya Sane (hereinafter: the Claimant or
player) and the Turkish club, Bursaspor Kulübü Dernegi (hereinafter: the Respondent or
club) entered into an employment contract valid from 1 July 2016 until 31 May 2019, i.e.
three seasons.
2.
According to the employment contract, the Claimant was entitled to receive, during the
season 2018/2019, the following remuneration and fringe benefits:
EUR 50,000 net on 1.07.2018,
EUR 27,500 net per month from August 2018 until May 2019 (10 months),
A car,
Four flight tickets per season.
3.
During the course of the employment relationship, the player agreed to go on loan to
the French club AJ Auxerre from 1 February 2017 until 31 May 2017. At expiry of such
loan, the player returned to the club.
4.
Subsequently, the player went on a second loan to AJ Auxerre, valid for the entire season
2017/2018. Accordingly, on 18 July 2017, the parties concluded an “addendum to the
contract of employment” (hereinafter: the addendum) whereby they agreed to suspend
the employment contract during the loan period, i.e. from 18th July 2017 until 30 June
2018.
5.
Notwithstanding, the Respondent/Counter-Claimant agreed to pay the player following
amount for the season 2017/2018:
EUR 100,000 net within the next 3 days after the club AJ Auxerre pays the loan fee
to the Respondent/Counter-Claimant;
EUR 40,000 net on 01.02.2018.
6.
The addendum further mentions that in case of late payment of the aforementioned
amounts, 10% interest per annum will apply as from the date on which payment should
be have been made as well as a penalty of EUR 10,000.
7.
On 4 July 2018, once the second loan elapsed, the Claimant/Counter-Respondent
requested the Respondent/Counter-Claimant to provide him with a flight ticket in order
to renew his Turkish visa. Facing the absence of reply, the Claimant/Counter-Respondent
reiterated his request on 5 July 2018 via WhatsApp message.
8.
On 5 July 2018, the Respondent/Counter-Claimant replied to the Claimant/CounterRespondent and requested him to buy his own ticket, and that the Respondent/CounterClaimant would refund him at a later stage. In the same letter, the Respondent/CounterClaimant pointed out that it had sent a letter to the Claimant/Counter-Respondent on 2
July 2018 by DHL by means of which it had requested the player to return to Bursa.
9.
Some communications between the parties ensued regarding the player’s travelling and
renewal of his visa, and the club made a reservation for a flight back to Turkey.
Player Vieux Yakhya Sane, Senegal / Club Bursaspor Kulübü Dernegi, Turkey
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10.
On 13 July 2018, the Respondent/Counter-Claimant sent the Claimant/CounterRespondent a notification requesting him to immediately return to Bursa otherwise it will
have to terminate the employment contract with just cause.
11.
On 14 July 2018, the Claimant/Counter-Respondent informed the Respondent/CounterClaimant that he was not able to use the club’s flight reservation to renew his visa since
the reservation was lacking some information such as his name.
12.
On 18 July 2018, the player bought his own flight ticket to return to Bursa on 20 July
2018. This information was communicated to the club by the player’s legal representative.
13.
However, on the same day as the flight, the club sent a notice of termination of contract
to the player. As the player received such termination notice prior to flying back to
Turkey, he did not board the flight scheduled for the same day.
14.
On 27 September 2018, the Claimant/Counter-Respondent lodged a claim against the
Respondent/Counter-Claimant regarding outstanding remuneration and compensation
for breach of contract.
15.
The Claimant/Counter-Respondent requested the Dispute Resolution Chamber:
a) To order the Respondent/Counter-Claimant to pay the following amounts as overdue
contractual payments:
o EUR 40,000 net plus 10% interest as from 1 February 2018;
o EUR 10,000 net as penalty, plus 5% interest as from 1 February 2018;
o EUR 50,000 net plus 5% interest as from 1 July 2018;
o EUR 1,090.74 net as reimbursement of the flight ticket he had to purchase himself,
plus 5% interest as from 18 July 2018;
b) To order the Respondent/Counter-Claimant to pay the following amounts as
compensation:
o EUR 275,000 net plus 5% interest as from 20 July 2018, corresponding to the
residual value of the employment contract;
o EUR 82,500 net plus 5% interest as from 20 July 2018 as additional compensation,
corresponding to 3 months of salary;
c) To impose a transfer ban for two periods on the Respondent/Counter-Claimant in
accordance with art 17 par. 4 of the Regulations on the Status and Transfer of Players.
16.
In support of his claim, the player sustained that he had never received the club’s letter
dated 2 July 2018 ordering him to return to Bursa (cf. par. I.9 above).
17.
The player added that the club could have expected that he would not immediately
return to the club after the expiry of the loan as he needed to spend some time with his
family and to pack his belongings.
18.
The player further held that he had always acted in accordance with the employment
contract and his only wish was that the club would buy and send him a valid flight ticket
in order for him to renew his Turkish visa. The player deemed, therefore, that he could
Player Vieux Yakhya Sane, Senegal / Club Bursaspor Kulübü Dernegi, Turkey
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not be held responsible for the delay in his arrival to Turkey and that it was the club’s
obligation to purchase the flight ticket.
19.
In addition, the player underlined that the club had not paid him the second instalment
under the addendum in the amount of EUR 40,000, to which should be added 10% p.a.
plus the EUR 10,000 penalty as per the addendum. Equally, the club had not paid the
player the amount of EUR 50,000 due on 1 July 2018 per the employment contract.
20.
In reply to the player’s claim, the club pointed out that the present dispute began at the
end of the second loan spell with AJ Auxerre, since the player did not return to Bursa for
the last season of his contract.
21.
In particular, the Respondent/Counter-Claimant argued that the Claimant/CounterRespondent “had an irresponsible behaviour and did not share his contacts with the club
manager”.
22.
Since the training preparation for the new season started on 27 June 2018, the
Respondent/Counter-Claimant tried to communicate with the player in order to arrange
his return. However, the player could allegedly not be reached and had changed his
phone number several times without communicating it to the club. Furthermore and
contrary to the player’s allegation, the latter played his last match with AJ Auxerre on 11
May 2018 and had quite a reasonable time, until 27 June 2018, to sort out his private
affairs.
23.
Due to the Claimant/Counter-Respondent’s inaction, the Respondent/Counter-Claimant
sent the player a letter on 2 July 2018 whereby it requested the player to immediately
return to Bursa; such letter remained unanswered.
24.
The Respondent/Counter-Claimant considers that the Claimant/Counter-Respondent did
not want to return to the club and had no intention to do it. This is, according to the
club, reflected in a WhatsApp conversation where the only excuse of the
Claimant/Counter-Respondent was the issue related to the flight ticket. Nevertheless, the
Respondent/Counter-Claimant
made
the
requested
reservation
but
the
Claimant/Counter-Respondent was not eager to return.
25.
In continuation, the club made reference to its letter dated 13 July 2018, by means of
which it sent the player a second default notice. Given the absence of reaction of the
claimant and the fact that he did not return to Bursa, the respondent had no other choice
but to unilaterally terminate the employment contract on 20 July 2018.
26.
Finally, the Respondent/Counter-Claimant points out that the player never informed
them that he had bought a flight ticket to return on 20 July 2018. Should the club have
been informed, it would never have terminated the employment contract. Furthermore,
the club argued that the player is not entitled to receive the amount of EUR 50,000 due
on 1 July 2018. This amount was for the 2018/2019 season, but since the employment
contract was terminated and the Claimant/Counter-Respondent was no longer under
contract with the club for the relevant season, such amount is no longer due.
27.
The club, therefore, lodged a counter-claim against the player, requesting the Dispute
Resolution Chamber:
a) to hold a hearing to clarify the facts in accordance with art .11 of the procedural rules;
Player Vieux Yakhya Sane, Senegal / Club Bursaspor Kulübü Dernegi, Turkey
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b) to consider that the termination “has been done with right cause due to absenteeism
of the claimant after two unanswered default notice”;
c) to order the claimant to pay the amount of EUR 82,500 as compensation due to
unilateral termination with just cause;
d) to reject the complaint of the Claimant.
28.
Upon receipt of the Respondent/Counter-Claimant’s position, the Claimant/CounterRespondent requested a deadline extension to submit his replica. The deadline extension
was granted but FIFA never received the Claimant/Counter-Respondent’s reply, although
the latter argued that he had sent it on the final day of the deadline, namely on 10
December 2018. The FIFA IT services confirmed that no email was received from the
Claimant/Counter-Respondent on that day.
29.
The player remained unemployed following the termination of the employment contract
and until its regular expiry.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the case at hand. In this respect, the
Chamber took note that the present matter was submitted to FIFA on 27 September 2018.
Consequently, the 2018 edition of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural
Rules) is applicable to the matter at hand (cf. art. 21 par. 2 and par. 3 of the Procedural
Rules).
2.
Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed
that, in accordance with art. 24 par. 1 and 2 in conjunction with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (edition 2020), it is competent to decide
on the present litigation, which concerns an employment-related dispute with an
international dimension between a Senegalese player and a Turkish club.
3.
Furthermore, the DRC analysed which edition of the 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
2020) and considering that the present matter was submitted to FIFA on 27 September
2018 , the January 2018 edition of said Regulations on the Status and Transfer of Players
(hereinafter: the Regulations) is applicable to the present matter as to the substance.
4.
Having established the foregoing, and entering into the substance of the matter, the
Chamber continued by acknowledging the above-mentioned facts as well as the
documentation contained in the file in relation to the substance of the matter. However,
the Chamber emphasised that in the following considerations it will refer only to the
facts, arguments and documentary evidence which it considered for the assessment of
the matter at hand.
Player Vieux Yakhya Sane, Senegal / Club Bursaspor Kulübü Dernegi, Turkey
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5.
The Chamber first recalled that the parties had concluded an employment contract valid
from 1 July 2016 until 31 May 2019, i.e. for three seasons. Furthermore, the player was
loaned to the French club, AJ Auxerre, for half of the season 2016/2017 and the entire
season 2017/2018. On 18 July 2017, the parties entered into a further agreement on
entitled “addendum to the contract of employment” whereby the Respondent/CounterClaimant agreed to pay the Claimant/Counter-Respondent the following amounts during
the season 2017/2018:
EUR 100,000 net within the next 3 days after the club AJ Auxerre pays the loan fee
to the Respondent/Counter-Claimant;
EUR 40,000 net on 01.02.2018.
6.
The dispute appears to have started towards the end of the season 2017/2018, once the
loan to AJ Auxerre finished. According to the player, he was waiting for the club to issue
him a flight ticket in order to return to Turkey and to obtain a new visa. The club, on its
part, argued that it had summoned the player to return to Bursa already on 2 July 2018,
but that the player had failed to do so.
7.
The parties were in regular contact in July 2018, during which the club asked the player
to buy a flight ticket himself and they would refund him later. At some point, the club
apparently made a reservation on a flight on behalf of the player, but the latter claimed
that he could not use this reservation as it did not mention his personal data.
8.
The club ultimately decided to terminate the contract on 20 July 2018, the same day on
which the player was due to return to Turkey, after he had bought his own flight ticket.
9.
The player lodged a claim against the club for outstanding remuneration and
compensation for breach of contract, as he deemed that the club had no just cause to
terminate the contract. The club equally lodged a counter-claim against the player for
compensation for breach of contract, as it deemed that the player did not return to Bursa
at the start of the season 2018/2019 without a valid reason.
10.
The Chamber, therefore, determined that the main issue to be resolved in the present
matter is whether the club had a just cause to terminate the employment contract on 20
July 2018 as well as the consequences, if any of such early termination.
11.
In this context, the Chamber referred to its well-established jurisprudence, according to
which only a breach or misconduct which is of a certain severity justifies the termination
of a contract. In other words, only when there are objective criteria which do not
reasonably permit to expect a continuation of the employment relationship between the
parties, a contract may be terminated prematurely. Hence, if there are more lenient
measures which can be taken in order for an employer to ensure the employee’s
fulfilment of his contractual duties, such measures must be taken before terminating an
employment contract. A premature termination of an employment contract can only ever
be an ultima ratio measure.
12.
With this in mind, the Chamber deemed important to note that the player’s loan to AJ
Auxerre had finished on 30 June 2018. According to the documentation on file, already
on 5 July 2018, the player had enquired about his flight ticket with the club. In the
Chamber’s opinion, whether the player had received the club’s summons dated 2 July
2018 was not decisive as it appears that the parties had been discussing the issue of the
player’s flight tickets over the next days and weeks. The Chamber, therefore, concluded
Player Vieux Yakhya Sane, Senegal / Club Bursaspor Kulübü Dernegi, Turkey
6
that the player had sufficiently shown his intention to return to the club as soon as
possible.
13.
In continuation, the DRC noted that the club proceeded to terminate the contract as the
parties were still in discussions regarding the player’s flight ticket and the renewal of the
player’s visa. Furthermore, the player had provided evidence that he had purchased a
flight ticket to return to Turkey on 20 July 2018, i.e. on the same day as the club
terminated the contract.
14.
In view of the above, the Chamber came to the unanimous conclusion that the club
manifestly did not follow the ultima ratio principle prior to terminating the contract. The
player had clearly expressed his will to resume his activities with the club following the
expiry of his loan to AJ Auxerre. Furthermore, the Chamber noted that, according to the
employment contract, the club was to provide the player with four flight tickets per
season. Consequently, it was unreasonable on the club’s part to assume that the player
would simply buy his own flight ticket to come back to the club. Finally, it is proven that
the player had promptly enquired about the issuance of a flight ticket.
15.
On this basis, the Chamber found that the Respondent/Counter-Claimant did not have a
just cause to terminate the employment contract on 20 July 2018.
16.
Having established that the club is to be held liable for the early termination of the
employment contract, the Chamber focused its attention on the consequence of such
termination. In this regard, the Chamber first of all held that the counter-claim of the
Respondent/Counter-Claimant is rejected.
17.
The Chamber then reverted to the Claimant/Counter-Respondent’s claim for outstanding
salaries and compensation. The Claimant/Counter-Respondent claimed that the
instalment of EUR 40,000 due on 1 February 2018 as per the “addendum to the contract
of employment” as well as the salary for the month of July 2018 remained outstanding.
Moreover, the player, referring to the terms of the “addendum to the contract of
employment”, held that 10% interest per annum applies on the amount of EUR 40,000,
and that the penalty of EUR 10,000 should also be awarded to him.
18.
The Chamber noted in this regard that the Respondent/Counter-Claimant had not
contested that these amounts had remained outstanding. Therefore and in accordance
with the principle of pacta sunt servanda, the Chamber decided that the
Respondent/Counter-Claimant must pay the Claimant/Counter-Respondent the following
amounts:
19.
EUR 40,000 plus 10% interest p.a. on the said amount as from 1 February 2018
until the date of effective payment,
EUR 10,000 as penalty,
EUR 50,000 plus 5% interest p.a. on the said amount as from 1 July 2018 until
the date of effective payment.
In continuation, the Chamber focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the members of the
Chamber 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
Player Vieux Yakhya Sane, Senegal / Club Bursaspor Kulübü Dernegi, Turkey
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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.
20.
In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the pertinent contract contained a provision by means of which the parties
had beforehand agreed upon an amount of compensation payable by the contractual
parties in the event of breach of contract. The Chamber clarified in this respect that the
employment contract did not include such a clause.
21.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
22.
The Chamber recalled that the club terminated the contract on 20 July 2018 and that the
contract was supposed to run until 31 May 2019. Thus, the player would have received,
during this period, an amount equivalent to ten monthly salaries. As a consequence, the
amount of EUR 275,000 serves as a basis for the calculation of the compensation.
23.
In continuation, the player remained unemployed during the same period of time, which
entails that he was not able to mitigate his damages.
24.
In view of the above, the Chamber decided that the compensation for breach of contract
shall be set at EUR 275,000, amount which is deemed fair and appropriate taking into
account the overall circumstances surrounding the present matter. Furthermore, 5%
interest p.a. shall apply on said amount as of 20 July 2018 until the date of effective
payment.
25.
Furthermore and with regard to the player’s request for the reimbursement of one flight
ticket, the DRC noted that, although the employment contract did provide for the
obligation on the club’s part to provide the player with four round trip flight tickets, the
latter had not provided evidence of the actual costs incurred when he had to purchase
his own flight tickets. Consequently and as is the standard practice in similar cases, the
Chamber decided to award the player an amount estimated by FIFA Travel for the route
in question. Therefore, the club must pay the player an additional amount of EUR 946 as
reimbursement of one flight ticket for the route Dakar-Istanbul.
26.
Finally and with regard to the player’s request for 3 additional monthly salaries, the
Chamber decided to reject such request due to a lack of contractual and legal basis.
27.
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.
28.
In this regard, the Chamber established that, in virtue of the aforementioned rovision, it
has competence to impose a sanction on the club. More in particular, the DRC pointed
Player Vieux Yakhya Sane, Senegal / Club Bursaspor Kulübü Dernegi, Turkey
8
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.
29.
Therefore, bearing in mind the above, the DRC decided that, in the event that the club
does not pay the amount due to the player within 45 days as from the moment in which
the player, following the notification of the present decision, communicates the relevant
bank details to the club, 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 club in accordance with art. 24bis par. 2 and 4 of
the Regulations.
30.
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.
31.
The Chamber concluded its deliberations by establishing that any further claims of the
Claimant/Counter-Respondent are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Vieux Yakhya Sane, is partially accepted.
2.
The Respondent / Counter-Claimant, Bursaspor Kulübü Dernegi, has to pay to the
Claimant / Counter-Respondent outstanding remuneration in the amount of
EUR 100,000, plus interest as follows:
-
EUR 40,000, plus 10% interest p.a., as from 1 February 2018 until the date of effective
payment;
EUR 10,000;
EUR 50,000, plus 5% interest p.a., as from 1 July 2018 until the date of effective
payment.
3.
The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent
compensation for breach of contract in the amount of EUR 275,000, plus 5% interest p.a.,
as from 20 July 2018 until the date of effective payment, as well as EUR 946.
4.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
5.
The counter-claim lodged by the Respondent / Counter-Claimant is rejected.
6.
The Claimant / Counter-Respondent is directed to inform the Respondent / CounterClaimant, 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 / Counter-Claimant must pay the amounts mentioned under points 2 and 3
above.
Player Vieux Yakhya Sane, Senegal / Club Bursaspor Kulübü Dernegi, Turkey
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7.
The Respondent / Counter-Claimant 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).
8.
In the event that the amounts due in accordance with points 2 and 3 above are not paid
by the Respondent / Counter-Claimant w ithin 45 day s as from the notification by the
Claimant / Counter-Respondent of the relevant bank details to the Respondent / CounterClaimant, the Respondent / Counter-Claimant 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).
9.
The ban mentioned in point 8 above will be lifted immediately and prior to its complete
serving, once the due amounts are paid.
10.
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 related to the appeal procedure:
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.
The full address and contact numbers of the CAS are the following:
Player Vieux Yakhya Sane, Senegal / Club Bursaspor Kulübü Dernegi, Turkey
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Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Vieux Yakhya Sane, Senegal / Club Bursaspor Kulübü Dernegi, Turkey
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