F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 15 April 2020

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 15 April 2020,

by

Stijn Boeykens (Belgium),

on the claim presented by the player,

Doukoure Abdoulaye, Ivory Coast,

represented by Mr Slim Boulasnem

as Claimant

against the club,

Al Faisaly, Jordan

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 9 February 2019, the player from the Ivory Coast, Abdoulaye Dieng (hereinafter: the Claimant or the player) and the Jordan club, Al Faisaly (hereinafter: the Respondent or the club) signed an employment contract (hereinafter: the contract) valid as from 9 February 2019 until “the end of the football season 2022”.

2. In accordance with the contract, the player was entitled to the following remuneration:

 USD 800 as monthly salary “until the end of the football season 2019”;

 USD 1,500 as monthly salary “until the end of the football season 2020”;

 USD 2,500 as monthly salary “until the end of the football season 2021”;

 USD 3,500 as monthly salary “until the end of the football season 2022”.

3. Furthermore, the contract contains the following clause: “In case the first party [the club] wishes to terminate the player’s contract, the first party [the club] pays the second party dues until the date of termination of the contract”.

4. According to information contained in the Transfer Matching System (TMS), the football seasons in Jordan run as follows:

- 2018/2019: from 17 August 2018 until 25 October 2019;

- 2020: from 30 January 2020 until 5 November 2020;

- 2021: from 30 January 2021 until 5 November 2021;

- 2022: from 4 February 2022 until 28 October 2022.

5. On 21 October 2019, the player sent a default notice to the club, requesting payment of outstanding remuneration of USD 5,300, corresponding to the salaries of February 2019 as well as July until September 2019, within 15 days and to provide him with an employment VISA.

6. On 28 November 2019, the player terminated the contract with the club, referring to outstanding remuneration as well as the failure of the club to provide an employment VISA.

7. On 28 November 2019, the Claimant lodged a claim in front of FIFA against the Respondent for outstanding remuneration and compensation for breach of contract, requesting the total amount of USD 93,800 corresponding to:

• USD 8,300 as outstanding remuneration corresponding to the salaries of February 2019 to November 2019;

• USD 82,500 as compensation for breach of contract corresponding to the residual value of the contract (December 2019 to June 2022);

• USD 3,000 as additional compensation corresponding to 2 monthly salaries of USD 1,500 each;

• Sporting sanctions to be imposed on the Respondent.

8. In its reply to the claim, the club argued that the player was on loan with the Jordan club Al-Mansheya as from 11 February 2019 “until the end of the class 1 football league”.

9. Moreover, the club deemed that due to the “postponement of the football season” the club was not able to “re-register” the player. In addition, the club stated that it requested the player to join the club for “club exercises” but he did not attend, despite having been “issued an entry visa to the player on 20/10/2019 and sent a ticket to him to come to Jordan on 16/12/2019”.

10. The club, provided a translated version of the employment visa issued on 20 October 2019, without providing the original. Furthermore, the club provided the loan agreement signed between the Claimant, the Respondent and the club Al-Mansheya, according to which Al-Mansheya had to pay the player’s salary of USD 800 until the end of the 2018/2019 season.

11. On 4 January 2020 the player signed a contract with the Emirati club, Al Tawoun, valid as from 4 January 2020 until 30 April 2020, including a total salary of United Arab Emirate Dirham (AED) 27,000 (approx. USD 7,460).

II. Considerations of the DRC judge

1. First of all, the DRC judge analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 28 November 2019. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2019; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2020) he is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from the Ivory Coast and a Jordan club.

3. Furthermore, the DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition March 2020), and considering that the present claim was lodged on 28 November 2019, the October 2019 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand. In particular, the DRC judge recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS).

5. Having said this, the DRC judge acknowledged that the Claimant and the Respondent signed an employment contract valid as from 9 February 2019 until 28 October 2022, i.e. the date the season will end in Jordan in 2022. In accordance with the contract, the Claimant was entitled to receive from the Respondent, inter alia, a monthly salary of USD 800 during season 2019, USD 1.500 during season 2020, USD 2,500 during season 2021 and USD 3,500 during season 2022.

6. In this respect, the DRC judge noted that the Claimant lodged a claim against the Respondent for breach of contract in front of FIFA, requesting outstanding remuneration as well as compensation for breach of contract.

7. In this context, the DRC judge took note of the fact that, the Claimant put the Respondent in default before terminating the contract on 28 November 2019.

8. On the other hand, the DRC judge took note of the Respondent’s reply, according to which the player was on loan with another club in Jordan between February until October 2019 and that it did not “re-register” the player due to the postponement of the season.

9. On account of the above, the DRC acknowledged that the central issue in the matter at stake was to determine as to whether the contract was terminated with or without just cause and to decide on the consequences thereof.

10. With the above in mind, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

11. In this respect, the DRC judge, turned his attention first to the Respondent’s allegation that the player, after having signed a contract with the Respondent, was loaned to the Jordan club Al-Mansheya. From the limited documentation on file, and according to information available in the Transfer Matching System (TMS), the DRC judge concluded that the player was indeed on loan with the above-mentioned club as from 11 February 2019 until 25 October 2019 and that therefore, Al-Mansheya, was obliged to pay the player’s salary during said period.

12. Consequently, and on account of the above, the DRC judge rejected the player’s claim regarding outstanding remuneration.

13. Subsequently, the DRC judge continued to examine the allegation that the player was not “re-registered” after completing the above-mentioned loan. In this regard, the DRC judge noted that the Respondent admitted not having registered the player.

14. In light of the above, the DRC judge considered important to point out, as has been previously sustained by the DRC, that among a player’s fundamental rights under an employment contract, is not only his right to a timely payment of his remuneration, but also his right to access training and to be given the possibility to compete with his fellow team mates in the team’s official matches.

15. This led the DRC judge to conclude that by refusing to register the Claimant, in spite of its express commitment to do so, the Respondent is effectively barring, in an absolute manner, the potential access of the Claimant to competition and, as such, is violating one of his fundamental rights as a football player.

16. Moreover, the DRC judge recalled the principle according to which, as confirmed by its longstanding jurisprudence, the application for a work permit is an administrative formality and therefore is the sole responsibility of a club.

17. On account of all the above circumstances, and in particular considering the failure to register the Claimant and to apply for a work permit, the DRC judge established that the Respondent had no longer been interested in the Claimant’s services. Such conduct constitutes, in the DRC judge’s view, a clear breach of contract. Consequently, the DRC judge concurred the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant.

18. Having established that the Respondent is to be held liable for the early termination of the employment contract, the DRC judge focused his attention on the consequence of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the Claimant is entitled to receive from the Respondent an amount of money as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant contract.

19. In continuation, the DRC judge focused his 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 DRC judge 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.

20. In application of the relevant provision, the DRC judge 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. In this regard, the DRC judge established that the contract did not contain such a clause.

21. As a consequence, the members of the DRC judge determined that the amount of compensation payable by Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The DRC judge 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. Bearing in mind the foregoing as well as the claim of the player, the DRC judge proceeded with the calculation of the monies payable to the player under the terms of the contract until October 2022. Consequently, the DRC judge concluded that the amount of USD 84,000 serve as basis for the determination of the amount of compensation for breach of contract.

23. In continuation, the DRC judge 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 able to reduce his loss of income. According to the constant practice of the DRC, 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.

24. In this regard, the DRC judge noted that the Claimant had signed an employment contract with the Emirati club Al Tawoun, valid as from 4 January 2020 until 30 April 2020, including a total salary of AED 27,000 (approx. USD 7,460).

25. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the DRC judge decided that the club must pay the amount of USD 76,540 as mitigated compensation to the player, which was considered reasonable and proportionate as compensation for breach of contract in the case at hand.

26. Furthermore, taking into account the consideration under number II./3. above, the DRC judge 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.

27. In this regard, the DRC judge pointed out 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.

28. Therefore, bearing in mind the above, the DRC judge 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, following the notification of the present decision, communicates the relevant bank details to the Respondent, 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.

29. Finally, the DRC judge 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. 24bis par. 3 of the Regulations.

30. The DRC judge concluded by rejecting any further claim of the Claimant.

III. Decision of the DRC judge

1. The claim of the Claimant, Doukoure Abdoulaye, is partially accepted.

2. The Respondent, Al Faisaly, has to pay to the Claimant, within 45 days as from the date of notification of this decision, compensation for breach of contract in the amount of USD 76,540.

3. Any further claim lodged by the Claimant is rejected.

4. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the email address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts plus interest mentioned under point 2. above.

5. The Respondent shall provide evidence of payment of the due amount in accordance with point 2. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount due in accordance with point 2. 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 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 entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

7. The ban mentioned in point 6. above will be lifted immediately and prior to its complete serving, once the due amount is paid.

8. In the event that the amount due in accordance with point 2. above 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 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 relating 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 (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

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: info@tas-cas.org / www.tas-cas.org

For the DRC judge:

Emilio García Silvero

Chief Legal & Compliance Officer