FIFA - Decisión disputa Kone 14092023

REF. FPSD-10644

Decision of the Dispute Resolution Chamber passed on 14 September 2023 regarding an employment-related dispute concerning the player Mory Kone

COMPOSITION:

Martín AULETTA (Argentina), Deputy Chairperson Mario FLORES CHEMOR (Mexico), member Stella MARIS JUNCOS (Argentina), member

CLAIMANT:

Mory Kone, Côte d’Ivoire Represented by Selçuk Demir

RESPONDENT:

Tuzlaspor, Türkiye Represented by Ercan Sevdimbaş pg. 2

REF. FPSD-10644

I. Facts of the case

1. On 10 August 2022, the Ivorian player, Mory Kone (hereinafter: the player or the Claimant) and the Turkish club, Tuzlaspor (hereinafter: the club or the Respondent) concluded an employment contract (hereinafter: the contract) valid as from the date of signature until 31

May 2023, with an option to further extend the contract for another season.

2. According to clause 3 of the contract, the Respondent undertook to pay, inter alia, the Claimant the following amounts: 2022/2023 season - EUR 40,000 net, payable at date of the signature. - EUR 80,000 net, payable in 10 instalments between August 2022 and May 2023 (EUR 8,000 per month). - EUR 1,000 per month for accommodation and car between August 2022 and May

2023. For 2023/2024 season (If the club used the extension option) - EUR 44,000 net, payable until the beginning of the league matches. - EUR 88,000 net, payable in 10 instalments between August 2023 and May 2024 (EUR 8,800 per month). - EUR 1,000 per month for accommodation and car between August 2023 and May

2024.

3. Clause 3 of the contract, included inter alia, the following: “[…] The Parties accept, declare and undertake that Club has the option to extend the Contract for the football season of 2023/2024 with an expiry date of 31.05.2024', with the financial conditions below-mentioned, by sending a notification to the Player and the Turkish Football Federation between the dates of 01.05.2023 - 31.05.2023. If the Club does not use its extension option, the Contract will be expired on 31.05.2023 […]”

4. On 2 January 2023, the Claimant put the Respondent in default and requested payment of EUR 27,000 corresponding to the unpaid salaries and car and accommodation allowances between August 2022 and May 2023 and TND 15,000 related to an unpaid bonus. The Claimant granted the Respondent a 15-day’ time limit order to the remedy the default.

5. On 16 January 2023, the Claimant signed a “Deed of consent” document (hereinafter: the declaration), stating as follows. It is to be noted that this document was presented by the Club with its submissions. pg. 3

REF. FPSD-10644 “I Mory Kone, accept, declare and undertake that I have withdrawn the warning I sent through my lawyer on 02.01.2023 by e-mail and 03.01.2023 by fax, due to the partial payment of Tuzlaspor A.S. of 9,000EUR, and the payment that Tuzlaspor A.S. will made on 28.02.2023, which is 12.000.-EUR and that I will not terminate the contract between me and Tuzlaspor A.S based on this warning.”

6. On 11 April 2023, the Claimant sent a termination notice to the Respondent, considering that the amount of EUR 39,000 remained allegedly unpaid.

7. The player confirmed FIFA that he remained unemployed following the termination of the

contract.

II. Proceedings before FIFA

8. On 21 June 2023, 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

9. In his claim, the player argued that he terminated the contract with just cause in accordance with art. 14bis of the Regulations on the Status and Transfer of Players (RSTP), considering that he sent a default notice on 2 January 2023 and as to the date of termination 11 April 2023, the club failed to pay EUR 39,000.

10. As to the extension clause, the Claimant indicated that said clause should be applicable considering that if the club would not have been forced the player to terminate the contract, he would benefit from the extension for the 2023-2024 season, and therefore, the amount for it shall be included in the compensation for breach of contract.

11. The Claimant requested the following relief: - The Respondent shall pay to the Claimant EUR 199,000 calculated as follows: November 2022: EUR 3,000; From December 2022 to May 2023: EUR 54,000 (EUR 9,000 per month); Season 2023/2024: EUR 142,000. - To condemn the club to pay EUR 71,000 as damages (dommages et intérêts). - To apply 5% interest p.a. within 30 days following the notification of the decision. pg. 4

REF. FPSD-10644 - To indicate that in the absence of payment within 30 days following the notification of the decision, the case shall be submitted to FIFA Disciplinary Committee in order to allow the later to impose a sanction against the club. - Sporting sanctions to be applied on the club. b. Position of the Respondent

12. In its reply, the Respondent indicated that the player signed the declaration in which the

default notice sent by the Claimant had been withdrawal and therefore, there are no grounds to state that the contract was terminated with just cause. Moreover, the club argued it paid the player his salaries after the mentioned default notice.

13. In case it is determined that the contract was terminated with just cause, the club submitted that the remaining salary would amount to EUR 14,700 (EUR 5,700 for April and 9,000 for May), considering that the contract would end on 31 May 2023 and the extension option was not used.

14. The Respondent requested the following relief: - To decide that the termination is an unjust termination and reject the termination compensation. - If the termination is determined to be justified, to reject the player’s request which is higher than EUR 14,700.

c. Rejoinder of the Claimant

15. The Claimant failed to provide its rejoinder within the timeframe granted by FIFA general secretariat. pg. 5

REF. FPSD-10644

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

16. 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 21 June 2023 and submitted for decision on 14 September 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.

17. 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 par. 1 lit. b) of the RSTP (May 2023 edition), the Dispute Resolution Chamber is competent to deal with

the matter at stake, which concerns an employment-related dispute with an international dimension between an Ivoirian player and a Turkish club.

18. 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 RSTP (May 2023 edition) and considering that the present claim was lodged on 21 June 2023, the May 2023 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

19. 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).

c. Merits of the dispute

20. The 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. pg. 6

REF. FPSD-10644

1. Main legal discussion and considerations

21. 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 the justice of the early termination of the contract together with the consequences that follow.

22. In this context, the Chamber took note that the Claimant claimed having terminated the

contract with just cause due to the failure of the club to pay his outstanding remuneration. On the other hand, the DRC was observant of the Respondent’s position according to which, by the declaration, the default notice sent on 2 January 2023 by the player was withdrawn and consequently, the player terminated the contract without just cause.

23. In view of the foregoing, the Chamber acknowledged that its 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 contract was terminated with just cause by the Claimant.

24. The Chamber observed that until the termination notice on 11 April 2023, the Claimant received payment of EUR 9,000 in accordance with the declaration – which was furthermore not contested by the Claimant. However, other than that payment, the Chamber was observant that the Respondent did not provide evidence of payment of the other amounts claimed by the Claimant.

25. In view of the foregoing, the Chamber concluded that until the date of termination, the club failed to pay the player EUR 30,000 (i.e., EUR 3,000 (November2022) plus EUR 36,000 (from December 2022 to March 2022) minus EUR 9,000), thus more than three salaries were due when the contract was terminated by the player.

26. The DRC highlighted in consideration of the foregoing that the Respondent had repeatedly and for a significant period been in breach of its contractual obligations towards the Claimant. Consequently, the Chamber concluded that the Claimant had just cause to unilaterally terminate the contract based on art. 14 of the Regulations. ii. Consequences

27. Having stated the above, the members of the Chamber turned their attention to the question of the consequences of such unjustified breach of contract committed by the

Respondent.

28. The Chamber observed that the outstanding remuneration at the time of termination, coupled with the specific requests for relief of the player, were EUR 30,000.

pg. 7

REF. FPSD-10644

29. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which were outstanding under the contract at the moment of the termination, i.e., EUR

30,000.

30. In addition, taking into consideration the Claimant’s request, the constant practice of the Chamber in this regard and the principle ne ultra petita, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amounts as from 18 October 2023 until the date of effective payment.

31. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the player by the club in the case at stake. In doing so, 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 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.

32. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment 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. 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.

33. 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.

34. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the contract from the date of its unilateral termination until its end date. Consequently, the Chamber concluded that the amount of EUR 18,000 (i.e., 2 times EUR 9,000) serves as the basis for the determination of the amount of compensation for breach of contract.

35. On this point, the Chamber took note that the Claimant requested as residual value in addition to the above value, EUR 142,000; salaries which were mentioned in the unilateral extension’s clause of the contract for the season 2023/2024. The Chamber stated that said amount (EUR 142,000) was not added considering that it cannot be established that the pg. 8

REF. FPSD-10644 contract would be indeed renewed, and the calculation has been made on the basis of the original terms of the contract.

36. In continuation, the Chamber verified as to whether the player had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

37. In this respect, the Chamber noted that the player remained unemployed since the unilateral termination of the contract.

38. By referring once again to art. 17 par. 1 lit. ii) of the Regulations, according to which, in

case the player did not sign any new contract following the termination of his previous contract, as a general rule, the compensation shall be equal to the residual value of the contract that was prematurely terminated.

39. In this respect, the Chamber decided to award the player compensation for breach of contract in the amount of EUR 18,000 as the residual value of the contract.

40. Lastly, taking into consideration the player’s request, the constant practice of the Chamber in this regard and the principle ne ultra petita, the Chamber decided to award the player interest on said compensation at the rate of 5% p.a. as of 18 October 2023 until the date of effective payment. iii. Compliance with monetary decisions

41. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par. 1 and 2 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.

42. 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. The overall maximum duration of the registration ban shall be of up to three entire and consecutive registration periods.

43. Therefore, bearing in mind the above, the DRC 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 pg. 9

REF. FPSD-10644 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.

44. The Respondent shall make full payment (including all applicable interest) to the bank account provided by the Claimant in the Bank Account Registration Form, which is attached to the present decision.

45. The DRC 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.

d. Costs

46. 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.

47. 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.

48. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 10

REF. FPSD-10644

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Mory Kone, is partially accepted.

2. The Respondent, Tuzlaspor, must pay to the Claimant the following amounts: - EUR 30,000 as outstanding remuneration plus 5% interest p.a. as from 18 October 2023 until the date of effective payment; - EUR 18,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 18 October 2023 until the date of effective payment.

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, if full payment

(including all applicable interest) is not made within 45 days of notification of this decision, the following consequences shall apply:

1. 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.

2. 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 pg. 11

REF. FPSD-10644

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

Fédération Internationale de Football Association FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 12