FIFA - Decisión disputa Mpoku Ebunge 11052023

REF. FPSD-7289

Decision of the Dispute Resolution Chamber passed on 11 May 2023 regarding an employment-related dispute concerning the player PAUL JOSE MPOKU

EBUNGE

COMPOSITION:

Clifford J. Hendel (USA & France) , Chairperson Stella Maris Juncos (Argentina), member Alejandro Atilio Taraborrelli (Argentina/Italy), member

CLAIMANT:

Paul Jose Mpoku Ebunge, Belgium Represented by Kristof De Saedeleer

RESPONDENT: Konyaspor, Türkiye pg. 2

REF. FPSD-7289

I. Facts of the case

1. On 23 July 2021, the Belgian player, Paul Jose Mpoku Ebunge (hereinafter: Claimant or player) and the Turkish club, Konyaspor (hereinafter: club or Respondent) concluded an employment contract

(hereinafter: contract) valid as from 23 July 2021 until 31 May 2023.

2. According to the contract, the Respondent undertook to pay the Claimant, for the 2021/2022 season

the following monthly salaries: 31.08.2021 55.000.-Euro 01.10.2021 55.000.-Euro 31.10.2021 55.000.-Euro 30.11.2021 55.000.-Euro 01.01.2022 55.000.-Euro 31.01.2022 55.000.-Euro 28.02.2022 55.000.-Euro 01.04.2022 55.000.-Euro 30.04.2022 55.000.-Euro 31.05.2022 55.000.-Euro

3. Article 3.C.1 of the contract provides the following in respect of bonusses: “In addition to the remuneration as set forth above. The Player shall be paid 2.631.-Euro net (maximum

amount of 99.978.-Euro net 28 official league matches) as per match bonus for the official league matches he participates in. Match bonuses shall be paid in accordance with the conditions below: For each match in which the Player is fielded within starting 11 and plays at least 45 minutes 100% of the match bonus will be paid If the Player is fielded with the first eleven but played Jess than 45 minutes or enters the field as a substitute at any stage of a match 75% of the per match bonus will be paid If the Player is amongst the players entered on the match entry list (21 players list) but not fielded 50% of the per match bonus will be paid. pg. 3

REF. FPSD-7289

If the Player is not in match entry list (21 players list), no bonus will be paid (except in case of injury as set out under par. vii. below) Per match bonuses will only and exclusively be paid for official league (Turkish Super League) matches of the A team category The Player will not be entitled to the per match bonusses if he is sent off during the relevant match, regardless of the reason for being sent off and the minute he is sent off. In case the Player is injured during an official game or a collective training session of the Club, the Player shall be entitled to 50% of the per match bonusses for the matches he misses due to such an injury. Missed matches will be determined by the health report of the Club's medical experts. The per match bonusses shall be calculated once after each 8th match and the bonusses for the first four matches shall be paid within 15 days following the completion of the 8th match."

4. The contract establishes that for the 2022/2023 season the following remuneration, would be paid

to the Claimant: 01.07.2022 2.500.-Euro 30.07.2022 2.500.-Euro 31.08.2022 60.000.-Euro

01.10.2022 65.000.-Euro 31.10.2022 65.000.-Euro 30.11.2022 65.000.-Euro 01.01.2023 65.000.-Euro 31.01.2023 65.000.-Euro 01.04.2023 65.000.-Euro 30.04.2023 65.000.-Euro 31.05.2023 65.000.-Euro

5. On 5 August 2022, the Claimant put the Respondent in default and requested payment of his outstanding remuneration payable on 1 July and 30 July 2022, as well informing the club to allow the Claimant to participate in training sessions with the licensed coach. pg. 4

REF. FPSD-7289

6. In respect of the aforesaid notice of default, the Claimant set a deadline of 15 August 2022 to comply with his default notice, however to no avail.

7. On 7 August 2022, the Respondent send a further letter to the Respondent, granting a deadline until 17 August 2022, mentioning the following: “We refer to our earlier letter of 5 August 2022. Further to this, the Player informed us that – on top of the payments of July – the following salaries and rentals fees are outstanding and have hence not yet been

(fully) paid: - Salary instalment 1 April 2022: 55,000 EUR net - Salary instalment 30 April 2022: 55,000 EUR net - Salary instalment 31 May 2022: 55,000 EUR net” TOTAL: a total amount of 165,000 € net (on top of the outstanding payments of July 2022)”

8. On 17 August 2022, the Claimant sent another letter to the Respondent granting it and additional 3 days to comply with payment of his outstanding remuneration.

9. On 23 August 2022, the Claimant unilaterally terminated the contract with the Respondent.

10. According to the information available in TMS, the player concluded a contract with the club Incheon United FC valid as from 1 January 2023 until 31 December 2024 for a monthly salary of USD 58,333 per month for the period 1 January 2023 until 31 December 2023, a signing fee of USD 200,000 and monthly salary of USD 66,66 per month for the period 1 January 2023 until 31 December 2023.

II. Proceedings before FIFA

11. On 1 September 2022, 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

12. According to the Claimant, although he fulfilled all of his contractual obligations, the Respondent stopped paying his salaries hence he terminated the contract with just cause.

13. Moreover, the Respondent did not allow to participate in the training sessions with the first team anymore with no legitimate reason, he had to train separately.

14. The requests for relief of the Claimant, as amended, were the following: 1. “To accept this claim. pg. 5

REF. FPSD-7289

2. To determine that the Employment Contract was unilaterally terminated by Mr. MPOKU with just cause in accordance with article 14bis FIFA Rules on the Status and Transfer of Players

3. To issue a decision condemning KONYASPOR to pay the amounts of: a) EUR 885.379,25 net (eight hundred eighty-five thousand three hundred and seventy-nine Euros and twenty-five centimes) b) Five per cent (5%) interest rate per annum applicable to the aforementioned compensation, starting to count as: - from 2 April 2022 on the amount of 55.000 EUR (net) - from 1 May 2022 on the amount of 55.000 EUR (net)

• from 1 June 2022 on the amount of 55.000 EUR (net) - from 2 July 2022 on the amount of 2.500 EUR (net) - from 31 July 2022 on the amount of 2.500 EUR (net) - from 23 August 2022 on the amount of 42.581 EUR (net) - from 1 June 2022 on the amount of 70.379,25 EUR (net) - from 23 August 2022 on the amount of 602.419,00 EUR (net)

4. To order KONYASPOR to assume the entirety of the FIFA DCR administration and procedural fees, if any.”

b. Position of the Respondent

15. In its reply, the Respondent argued that the unilateral termination of the contract does not stand as a termination without just cause.

16. The Respondent mentioned that upon the receipt of the notifications of the Claimant, the Respondent contacted the Claimant and together the parties’ held negotiations for the amicable resolution of the matter.

17. Additionally, the Respondent mentioned that it “drew three payment cheques in the total amount of 228.802.-Euro in favour of the Claimant and invited the Player to receive the cheques in order to affect the payment of the outstanding remuneration of the Claimant, on 22 August 2022.” The Respondent further mentioned that “it must be underlined that payment via post-dated payment cheques lie within the custom of the Club and the Player was also well-aware of this, as he accepted three different cheques on 26 November 2021 for the payment of outstanding remuneration in the total amount of 165.000.-Euro as follows: 55.000.-Euro on 31.03.2022, 55.000.-Euro on 30.04.2022 and 55.000.-Euro on 31.05.2022”

18. The Respondent argued that in light of the payment it had made, the outstanding balance due to

the Claimant is the amount of EUR 222,653.85. pg. 6

REF. FPSD-7289

19. In conclusion the Respondent indicated that the termination of the employment contract was

without just cause and requested the Chamber to: (a) directly to reduce the amount to be paid to the Player by his new club from the residual value of the prematurely terminated contract and order that the Claimant is not entitled to any compensation for breach of contract (as 600.000.-USD converts roughly to 610.000.-Euro and the claimed amount of compensation is 602.419. Euro), (b) to order the Player to submit a copy of the employment contract he signed with Incheon United Football Club and to take such contract into consideration for the purposes of the calculation of the compensation for breach of contract by waiting, if possible, until such contract comes into force (in December 2022) before requesting information from the Player on his employment situation, (c) to entertain the evidence submitted under Exhibit-7 to the present correspondence for the purposes of determining the offers made to the Player by other clubs ( 450.000.-USD to 500.000.-USD from Al-Ahli Saudi Football Club and 600.000. USD from Incheon United Football Club) and to admit this evidence as a ground for adjusting the amount of compensation based on the grounds that, even if the Player did not sign another employment contract despite such offers from other clubs, this would lead to the conclusion that the Player failed to meet with his duty to mitigate damages.

20. The request of relief of Respondent were that the Chamber respectfully:

(a) reject all the claims of the Claimant in full (b) to order that the amount of the outstanding remuneration of the Claimant is limited to 222.653,85.-Euro and to reject the Claimant's request for the payment of compensation for breach of contract, or to reduce the amount of compensation requested by the Claimant c. Additional comments of the Claimant

21. The Claimant mentioned that the proof of payment submitted by the Respondent i.e. “three cheques

for the salary of the months March, May and April (responding to a total amount of 165.000,00 EUR) have been wrongly included in the total amount being paid by the Respondent, since to this day the cheques have not been accepted, nor collected by the Claimant.” The Claimant is thereof still entitled to the payment, of the salaries for the months of March, April and May 2022, amounting to a total of EUR 165,000.

22. Additionally, the Claimant indicated that none of the amounts in “LIRA correspond to the fixed salaries the Respondent still owed and as already emphasized, the salaries has been always paid in EUR by the Respondent.” Instead, they are clearly payments of wins and draw bonuses promised by the club to the Claimant - majority of the payments in Turkish Lira were always made a few days after a win or a draw by the club.

23. According to the Claimant, only three amounts can qualify as payment for the bonuses provided for in the contract, specifically, the following payments: pg. 7

REF. FPSD-7289

DATE TURKISH LIRA EUR 04.11.2021 54.000 4.805,98 07.01.2022 90.000 5.768,67 11.02.2022 30.500 1.945,75

12.520,40

24. The above implies that of the Respondent only paid EUR 12,520.40, therefore regardless of the amounts already paid, there is still an outstanding amount of EUR 57,858.75 in bonuses.

25. In conclusion the Claimant reiterated the following:

(a) to accept this claim (b) to determine that the Employment Contract was unilaterally terminated by the Claimant with just cause in accordance with article 14bis FIFA Rules on the Status and Transfer of Players. (c) to issue a decision condemning the Respondent to pay the amount of EUR 872.858,75 net plus (5%)

interest rate per annum applicable to the aforementioned compensation, starting to count as: - from 2 April 2022 on the amount of 55.000 EUR (net) - from 1 May 2022 on the amount of 55.000 EUR (net) - from 1 June 2022 on the amount of 55.000 EUR (net) - from 2 July 2022 on the amount of 2.500 EUR (net) - from 31 July 2022 on the amount of 2.500 EUR (net) - from 23 August 2022 on the amount of 42.581 EUR (net) - from 1 June 2022 on the amount of 57.585,75 EUR (net) pg. 8

REF. FPSD-7289

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

26. 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 1 September 2022 and submitted for decision on 11

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.

27. 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 competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from Belgium and a club from Türkiye.

28. 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 01 September 2022, the October 2022 edition of said regulations

(hereinafter: the Regulations) is applicable to the matter at hand as to the substance. b. Burden of proof

29. 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

30. 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 abovementioned 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. 9

REF. FPSD-7289

1. Main legal discussion and considerations

31. 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 by the Claimant, based on the alleged non-payment of certain financial obligations by the Respondent as per the contract, in accordance with art. 14bis of the Regulations.

32. In this context, the Chamber acknowledged that its task was to determine whether the contract was

terminated by the Claimant with or without just cause and to decide on the consequences thereof.

33. The DRC observed that the Claimant asserted that the Respondent had not fulfilled its contractual obligations towards him and therefore he had just cause to terminate the contract.

34. The members of the Chamber noted that the Respondent in its reply to the claim argued that that the termination of the contract by the Claimant was not valid as it was in the process of negotiations with the latter and additionally that it made certain payments to the Claimant in accordance with the payment documents it submitted, which illustrated the payments it had made.

35. In this context the DRC analysed the documentation and highlighted that: i) the cheques were issued after termination of the contract; the (ii) the alleged receipt of payment is an unsigned copy of a club document, and (iii) that majority of the documents refers to amounts paid in Turkish Lira and not EUR, the currency linked to salary payments of the Claimant.

36. In this respect, the Chamber pointed out that the said documentation as submitted by the Respondent are not conclusive documentary evidence, on the basis of which it could be established that it made the relevant payments to the Claimant and do not prove beyond doubt the payment of the amounts claimed as outstanding by the Claimant.

37. Subsequently, the DRC noted that the Claimant confirmed receiving the amount of EUR 12,520.40 as bonuses, therefore, it decided that the said documents would be the only documents to be taken into account as “proof of payment” in the assessment of the matter.

38. In continuation, the Chamber noted that the Claimant claims not having received his remuneration for a period over more than two months. Furthermore, that the Claimant has provided written evidence of having put the Respondent in default at least 15 days before unilaterally terminating the contract on 23 August 2022.

39. Thus, the DRC concluded that the Claimant had a just cause to unilaterally terminate the contract,

based on art. 14bis. pg. 10 REF. FPSD-7289 ii. Consequences

40. 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.

41. 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 230,000 corresponding to the following: - EUR 55,000 as salary instalment due on 1 April 2022 - EUR 55,000 as salary instalment due on from 30 April 2022 - EUR 55,000 as salary instalment due on 31 May 2022 - EUR 2,500 as salary instalment due on 1 July 2022 - EUR 2,500 as salary instalment due on 30 July 2022 - EUR 60,000 as salary instalment due on 31 August 2022

42. Additionally, the Chamber observed that the Claimant was entitled to the bonus payments as claimed, which it decided that the Respondent is liable to pay in the amount of EUR 57,858.75.

43. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amounts as from the respective due dates until the date of effective payment.

44. 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.

45. 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.

46. 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 nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. pg. 11

REF. FPSD-7289

47. 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 585,000 (i.e., September 2022 until May 2023 at EUR 65,000 per month) serves as the basis for the determination of the amount of compensation for breach of contract.

48. 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.

49. According to the information available in TMS, the player indeed found new employment with the club Incheon United FC valid as from 1 January 2023 until 31 December 2024 for a monthly salary of USD 58,333 per month for the period 1 January 2023 until 31 December 2023, a signing fee of USD 200,000 and monthly salary of USD 66,66 per month for the period 1 January 2023 until 31 December 2023. [approximately EUR 446,409]

50. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which a player is entitled to an amount corresponding to three monthly salaries as additional compensation, should the termination of the employment contract at stake be due to overdue payables. In the case at hand, the Chamber confirmed that the contract termination took place due to said reason, i.e., overdue payables by the club, and therefore decided that the player shall receive additional compensation.

51. In this respect, the Chamber decided to award the amount of additional compensation of EUR 195,000, i.e., EUR 65,000 times 3 as the monthly remuneration of the player.

52. The Chamber reminded the parties that, as per the last sentence of art. 17 par. 1 lit. ii) of the Regulations, the overall compensation may never exceed the rest value of the prematurely terminated contract.

53. Consequently, on account of all the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the club must pay the amount of EUR 333,591 to the player

(i.e. EUR 585,000 minus EUR 446,409 plus 195,000), which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

54. Lastly, taking into consideration the player’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the player interest on said compensation at the rate of 5% p.a. as 23 August 2023 of until the date of effective payment. pg. 12

REF. FPSD-7289 iii. Compliance with monetary decisions

55. 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.

56. 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.

57. 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 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.

58. 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.

59. 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

60. 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.

61. 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.

62. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 13

REF. FPSD-7289

Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, PAUL JOSE MPOKU EBUNGE, is partially accepted.

2. The Respondent, Konyaspor, must pay to the Claimant the following amount(s):

(a) EUR 230,000 as outstanding remuneration plus 5% interest p.a. as from the respective due dates until the date of effective payment as follows: • on the amount of EUR 55,000 as from 2 April 2022 • on the amount of EUR 55,000 as from 1 May 2022 • on the amount of EUR 55,000 as from 1 June 2022 • on the amount of EUR 2,500 as from 2 July 2022 • on the amount of EUR 2,500 as from 1 August 2022 • on the amount of EUR 60,000 as from 1 September 2022 (b) EUR 57,858.75 as outstanding amount plus interest 5% interest p.a. of as from 23 August 2022 until the date of effective payment (c) EUR 333,591 as compensation for breach of contract without just cause plus 5% interest p.a. as from 23 August 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. 14

REF. FPSD-7289

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. 15