Tribunal Arbitral du Sport Court of Arbitration for Sport Arbitration CAS 2018/A/6050 Kayserispor Kulübü Derneği v. Sibiri Alain Traore, award of 18 September 2018 Panel: Mr Mark Hovell (United Kingdom), President; Mr João Nogueira da Rocha (Portugal); Mr Alexis Schoeb (Switzerland) Football Termination of the employment contract Player’s just cause to terminate the contract Financial and sporting implication of the breach 1. Whilst the FIFA Regulations on the Status and Transfer of Players (RSTP) does nor provide a definition of “just cause”, the commentary to the RSTP (No 2 to Article 14) provides some indications regarding the notion of just cause. In this respect, a CAS panel may consider in a particular case three relevant criteria such as (1) the duration of the contractual violation, (2) the overdue amount and (3) the necessary warning from the person suffering from the breach. In this regard, not paying the player’s salary for over 3 months and not paying him on time for over 6 months is a contractual violation that occurred over a significant period of time and which may already be qualified as a substantial breach of the club’s main obligation to pay the player. In addition, the fact that the overdue amount at the time of the termination of the employment contract is not an unsubstantial sum and corresponds to more than two of the player’s monthly salaries is also relevant. Finally, the fact that the player had warned the club, which was not heeded by the latter is relevant as well. Those factors constitute just cause for the player to terminate the contract. 2. Apart from the outstanding remuneration due to the player, a CAS panel is to consider the question of compensation on a de novo basis, pursuant to Article R57 of the CAS Code and may put itself in the shoes of the FIFA Dispute Resolution Chamber and apply the applicable law, i.e. the RSTP and in particular Article 17.1. Where the termination of the employment contract was due to a breach by the club, the “remuneration” factor, together with “the time remaining” factor, plays a major role. However, there is no possibility to award the player additional compensation from the club, even though the employment contract was terminated with just cause, if the player was able to find a new club and receive more money than he would have received from the club, in other words, if the player was able to fully mitigate his losses. CAS 2018/A/6050 2 Kayserispor Kulübü Derneği v. Sibiri Alain Traore, award of 18 September 2018 I. PARTIES 1. Kayserispor Kulübü Derneği Football Club (the “Club” or the “Appellant”) is a professional football club with its registered office in Kayseri, Turkey. The Club is a member of the Turkish Football Federation (the “TFF”), which in turn is affiliated with the Fédération Internationale de Football Association (“FIFA”). 2. Sibiri Alain Traore (the “Player” or the “Respondent”) is a professional football player born in Bobo Dioulasso, Burkina Faso on 31 December 1988 and who currently plays for RS Berkane. II. FACTUAL BACKGROUND 3. Below is a summary of the main relevant facts and allegations based on the Parties’ written submissions, pleadings and evidence adduced during these proceedings. Additional facts and allegations may be set out, where relevant, in connection with the legal discussion that follows. Although the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, it refers in this Award only to the submissions and evidence it considers necessary to explain its reasoning. A. The employment agreement between the Parties 4. On 12 August 2016, the Player and the Club signed an employment contract (the “Employment Contract”), which was valid until 31 May 2018. 5. In accordance with Article 6.1 of the Employment Contract, the Player was entitled to a salary of EUR 400,000 for the 2016/2017 season and EUR 450,000 for the 2017/2018 season. In particular, the salary for the 2016/2017 season was payable as follows: a) EUR 50,000 on the date of signature of the Employment Contract; b) EUR 50,000 on 31 August 2016; c) EUR 75,000 on 30 November 2016; d) EUR 75,000 on 31 January 2017; e) EUR 75,000 on 31 March 2017; and f) EUR 75,000 on 31 May 2017. 6. According to Article 6.3 of the Employment Contract, the Player was also entitled to EUR 10,000 for each season, “for the expenses with regard to - including but not limited with - residence, car, flight tickets”. 7. By 31 August 2016, the Club had paid the Player a total of EUR 110,000, corresponding to the first two instalments of wages, as well as EUR 10,000 that the Respondent claimed were for expenses owed to him under Article 6.3 of the Employment Contract. CAS 2018/A/6050 3 Kayserispor Kulübü Derneği v. Sibiri Alain Traore, award of 18 September 2018 8. The third instalment of EUR 75,000, which was due on 30 November 2016 was paid late, and in three separate payments: EUR 30,000 on 17 February 2017, EUR 20,000 on 2 March 2017 and EUR 25,000 on 20 April 2017. 9. On 20 April 2017, the Club paid the Player a further EUR 5,000 as part payment of the EUR 75,000 which was due on 31 January 2017. As of that date, the Respondent alleged that the Club therefore had overdue payments totalling EUR 145,000, corresponding to the remaining EUR 70,000 from the 31 January 2017 instalment, and EUR 75,000 for the 31 March 2017 instalment. 10. On 26 April 2017, the Player put the Club in default for the payment of EUR 145,000, corresponding to part of the instalment due on 31 January 2017 and to the entire instalment due on 31 March 2017, granting the Club ten days to remedy the default, failing which the Player would terminate the Employment Contract with just cause. 11. On 9 May 2017, the Club replied to the Player's letter, acknowledging that it had arrears due to the Player, while stating, however, that it had already paid him EUR 60,000 on 4 May 2017. The Club stated that the Player did not have just cause to terminate the Employment Contract and warned him that he would be in breach if he did. 12. On 10 May 2017, the Player sent another letter to the Club, by means of which he acknowledged receipt of the payment of the EUR 60,000 and put the Club in default for the amount of EUR 85,000, requesting payment thereof within the following five days. 13. On 16 May 2017, the Player wrote to the Club again stating that he had still not been paid the remaining overdue amount of EUR 85,000 and as such, he terminated the Employment Contract with immediate effect. B. Proceedings before FIFA 14. On 9 August 2017, the Player lodged a claim in front of the FIFA Dispute Resolution Chamber (the “FIFA DRC”) against the Club for breach of contract, requesting the following: “a) EUR 85,000 plus 5% interest p.a., for outstanding salaries, broken-down as follows: i. EUR 10,000 for part of the instalment due on 31 January 2017, plus 5% interest p.a. as of the same date; ii. EUR 75,000 for the instalment due on 31 March 2017, plus 5% interest p.a. as of the same date. b) EUR 535,000 as compensation for breach of contract, corresponding to the remaining value of the contract, plus 5% interest p.a. as of the date of the claim”. 15. Upon request of the FIFA Administration, the Player informed FIFA that, on an unspecified date, he had entered into an employment contract with the Qatari Club Al-Markhiya, valid from 1 July 2017 until 30 June 2019 (the “Qatari Contract”). According to the Qatari Contract, the CAS 2018/A/6050 4 Kayserispor Kulübü Derneği v. Sibiri Alain Traore, award of 18 September 2018 Player was entitled to a monthly salary of Qatari Rial (QAR) 216,667 “which is equal 54,166 Euro” payable on the last day of each month as from 1 July 2017 until 30 June 2018. 16. After the closure of the investigation-phase, the Club informed the FIFA Administration that it had paid the Player the amount of EUR 50,000 on 29 March 2018. The Player, upon request of FIFA, acknowledged receipt of such payment. 17. On 10 August 2018, the FIFA DRC issued a decision in this case partially accepting the claim of the Player (the “Appealed Decision”) as follows: “1. The claim of the [Player], is partially accepted. 2. The [Club], has to pay to the [Player], within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 35,000, plus 5% interest p.a. as of 1 April 2017 until the date of effective payment. 3. The [Club] has to pay to the [Player], within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of EUR 75,000, plus 5% interest p.a. as of 9 August 2017 until the date of effective payment. 4. In the event that the amounts plus interest due to the [Player] in accordance with the above-mentioned numbers 2. and 3. are not paid by the [Club] within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.