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 January 2020

Decision of the

Dispute Resolution Chamber (DRC) judge

passed in Zurich, Switzerland, on 15 January 2020,

by Omar Ongaro (Italy), DRC judge,

on the claim presented by the player,

Mr Kabba Sambou, Gambia,

represented by Mr Antoine Semeria

as Claimant

against the club,

KF Skënderbeu Korçë, Albania,

represented by Mr Lorin Burba

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 31 January 2020, the Gambian player, Kabba Sambou (hereinafter: the player or the Claimant) and the Albanian club, KF Skënderbeu Korçë (hereinafter: the club or the Respondent) concluded an employment contract (hereinafter: the contract) valid as from the date of signature until 30 June 2020.

2. Pursuant to art. 6.1 of the contract, the Claimant was, inter alia, entitled to the following:

a) EUR 3,000 per month for the season 2017/2018;

b) EUR 4,000 per month for the season 2018/2019;

c) EUR 5,000 per month for the season 2019/2020.

3. According to art. 6.2 of the contract, “payable months shall be considered the months failing during the period of the domestic football season or the international corroborated with the domestic football season, whichever begins first”.

4. On 21 May 2019, the Claimant informed the Respondent in writing that, “since the entry into force of the contract [he] should have received a total remuneration of [EUR] 56,500, the equivalent of 15 months salary”, but “he [only received EUR] 40,216”. In this context, the Claimant sustained that the total amount of EUR 16,284 was outstanding to him, providing the club 10 days to remedy the default.

5. According to the Claimant, on 28 May 2019, the Respondent paid the player the amount of 99,500 Albanian Lek [ALL], “the equivalent of [EUR] 850”.

6. On 7 June 2019, the player sent a correspondence to the club by means of which he underlined that the amount of EUR 19,569 was outstanding to him. The name of the attachment is “Early termination employment contract Mr Sambou”, but taking into account the content of said attachment, it appears that the document was mistakenly sent by the Claimant.

7. In view of the above, on 8 June 2019, the Claimant sent a further correspondence to the Respondent and informed the latter that the attached letter “cancels and replaces the one sent on [7 June 2019]” (cf. I.6). By means of said letter, the Claimant unilaterally terminated the contract holding, inter alia, that the club “has regularly made incomplete payments since the beginning of the execution of the employment contract […]”.

8. On 20 June 2019, amended on 5 August 2019, the Claimant lodged a claim against the Respondent in front of FIFA, requesting the following:

a) EUR 19,569, plus 5% interest p.a., corresponding to “unpaid wages since 30 January 2018”;

b) EUR 65,300, plus 5% interest p.a., corresponding to “wages that should have been paid to [the player] if his employment contract had not been terminated early due to the default of his former club”.

9. Furthermore, with regard to the interest, the Claimant requested “that in the absence of payment of all convictions within 30 days of notification of the decision taken, the sums will bear interest at the rate of 5% per annum”.

10. In its reply to the Claimant’s claim, the Respondent requested a deadline extension, which was granted on 13 November 2019. However, despite having been granted said deadline extension, the Respondent failed to provide its reply.

II. Considerations of the DRC judge

1. First of all, the Dispute Resolution Chamber judge (hereinafter: the DRC judge or the judge) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 20 June 2019. Taking into account the wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand (cf. article 21 par. 2 and 3 of the Procedural Rules).

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

3. In continuation, the judge 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, and considering that the present claim was lodged on 20 June 2019, the June 2019 edition of said regulations (hereinafter: Regulations) were 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 judge entered into the substance of the matter. In this respect, it started by acknowledging all the above-mentioned facts, the arguments and the documentation submitted by the Claimant and the Respondent. However, the judge 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.

5. First of all, the DRC judge noted that the parties entered into an employment contract valid as from 31 January 2018 until 30 June 2020, according to which the Respondent undertook to pay the Claimant EUR 3,000 per month for the season 2017/2018; EUR 4,000 per month for the season 2018/2019; and EUR 5,000 per month for the season 2019/2020. Furthermore, on 8 June 2019, the player terminated the employment contract in writing that “more than 4 months of unpaid wages” were outstanding to him.

6. In continuation, the DRC judge recalled that the Claimant lodged a claim in front of FIFA on 20 June 2019, for breach of contract which was subsequently amended on 5 August 2019, requesting inter alia the amount of EUR 19,569 as outstanding remuneration, as well as the amount of EUR 65,300 as compensation for the alleged breach of contract by the Respondent.

7. As a result, the judge established that the primary issue at stake is determining whether the Claimant had just cause to terminate the contract with the Respondent on 8 June 2019. In this respect, the DRC judge deemed it essential to make a brief recollection of the Claimant’s arguments regarding the contract termination, and in particular, verify which amount, if any, had in fact remained outstanding on the date of termination.

8. First of all, the DRC judge took note that, on 21 May 2019, the player put the club in default for the payment of EUR 16,284, corresponding to “his wages […] paid late and incompletely”, setting a 10 days’ time limit to remedy the default.

9. In addition, the DRC judge noted that, according to the player, “[the club] reacted to his [default letter] on 28 May 2019 with a payment of 99,500 [ALL], the equivalent of [EUR] 850”.

10. Moreover, the DRC judge took note that, according to the player, he had just cause to unilaterally terminate the employment contract on 8 June 2019, since the Respondent failed to comply with its contractual obligations. In this regard, the player affirmed that he had no alternative but to terminate the contract and deemed that the club should be held liable for the early termination of said contract.

11. Subsequently, the judge noted that the Respondent failed to present its response to the claim of the Claimant, in spite of the fact that FIFA had granted the club a 7 days’ deadline extension on 13 November 2019. By not presenting its position to the claim, the DRC judge was of the opinion that the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant.

12. In this context, as a consequence of the aforementioned consideration, the judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of the documentation already on file; in other words, upon the statements and documents presented by the Claimant.

13. In light of the above, given that according to the player on the date of termination a total amount of EUR 19,569 was outstanding to him, and given the fact that the Respondent failed to reply to the Claimant’s claim, the DRC judge determined that a total amount of EUR 19,569 was outstanding to the player on the date of termination.

14. In this respect, the DRC judge referred to art. 14bis par. 1 of the Regulations, which, inter alia, stipulates that, in case a club unlawfully fails to pay a player at least two monthly salaries on their due dates, the player will be deemed to have had a just cause to terminate his contract, provided that he has put the debtor in default in writing.

15. Consequently, on account of the above, considering that when the player terminated the contract an amount corresponding to more than 4 monthly salaries was outstanding, and more than 15 days had elapsed as from the date in which the player sent the default letter requesting his outstanding salaries, the DRC judge took into account its well-established jurisprudence and concluded that the Claimant had a just cause to unilaterally terminate the employment contract on 8 June 2019.

16. As a result, the DRC judge decided that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant.

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

18. Along those lines, the judge first referred to the Claimant’s request regarding the outstanding remuneration at the time of the unilateral termination of the employment contract. In this respect, the DRC judge concurred that the Respondent must fulfil its obligations as per the employment contract in accordance with the general legal principle of “pacta sunt servanda”.

19. In view of the above, and taking into account that the Respondent failed to present its response to the claim of the Claimant, the DRC judge decided that the Claimant was entitled to receive the amount of EUR 19,569 as outstanding remuneration, plus 5% interest p.a. as of 30 days from the notification of the decision until the date of effective payment.

20. Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the Claimant is entitled to receive compensation for breach of contract from the Respondent.

21. In continuation, the judge focused its attention on the calculation of the amount of compensation for breach of contract due to the Claimant by the Respondent in the case at stake. In doing so, 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.

22. In application of the relevant provision, the DRC judge 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 DRC judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

23. As a consequence, the judge determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the parameters set out in art. 17 par. 1 of the Regulations. Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract as from its termination until its regular expiry date, i.e. 30 June 2020, and concluded that the Claimant would have been entitled to receive EUR 64,000. Consequently, the DRC judge concluded that the amount of EUR 64,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

24. In continuation, the DRC judge verified as to whether the Claimant 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 art. 17 par. 1 point ii) of the Regulations, such remuneration under a new employment contract shall be deducted from the residual value of the contract that was terminated early, in the calculation of the amount of compensation for breach of contract (“the mitigated compensation”).

25. In this respect, the DRC judge noted that the Claimant did not conclude any new employment contract.

26. Consequently, in view of the above, the DRC judge decided that the Respondent must pay the total amount of EUR 64,000 to the Claimant, which is considered by the DRC judge to be a reasonable and justified amount as compensation for breach of contract.

27. In addition, taking into account the Claimant’s request, the DRC judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of 30 days from the notification of the decision.

28. The DRC judge concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

29. Furthermore, the 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.

30. 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.

31. Therefore, bearing in mind the above, the DRC judge decided that, in the event that the Respondent does not pay the amount 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.

32. 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 amount, in accordance with art. 24bis par. 3 of the Regulations.

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III. Decision of the DRC judge

1. The claim of the Claimant, Mr Kabba Sambou, is partially accepted.

2. The Respondent, KF Skënderbeu Korçë, has to pay to the Claimant outstanding remuneration in the amount of EUR 19,569, plus 5% interest p.a. as of 30 days from the notification of the present decision until the date of effective payment.

3. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of EUR 64,000, plus 5% interest p.a. as of 30 days from the notification of the present decision until the date of effective payment.

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

5. The Claimant is directed to inform the Respondent, 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 must pay the amounts mentioned under III.2. and III.3..

6. The Respondent shall provide evidence of payment of the due amounts in accordance with III.2. and III3. to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amounts due plus interest in accordance with III.2. and III.3. are 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 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).

8. The ban mentioned in III.7. will be lifted immediately and prior to its complete serving, once the due amounts are paid.

9. In the event that the aforementioned sums plus interest 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.

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Note related to the publication:

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Note relating to the motivated decision (legal remedy):

According to article 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.

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For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer