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 10 February 2020

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 10 February 2020,

by

Daan de Jong (The Netherlands)

on the claim presented by the player,

Hele Hele Isaac, Cameroon,

represented by Mr Mathew Chukwuemeka Friday

as Claimant

against the club,

Sunshine Stars FC, Nigeria

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 1 April 2017, the player Hele Hele Isaac (hereinafter: the player or the Claimant) concluded an employment contract (hereinafter: the contract) with the club, Sunshine Stars FC (hereinafter: the club or the Respondent), valid as from 1 April 2017 until December 2017.

2. The contract stipulated the following:

“7. The Player’s remuneration shall be:

7.1 Basic wage NGN [Nigerian Naira] 300,000.

N…… per annum payable by monthly instalments in arrears from April 1st to 31st Dec 2017.

7.2 Such of the bonuses and incentives as the Player shall be entitled to receive under the terms of the Club’s bonus and incentive scheme as are set out below/ a copy of which is annexed hereto.

Bonuses Match bonus

Insurance”

3. The player sent several default notices to the club, the first one on 14 January 2019, requesting the payment of NGN 1,500,000.

4. On 29 May 2019, the player lodged a claim in front of FIFA, requesting the following:

“the CLAIMANT respectfully urges the DISPUTE RESOLUTION CHAMBER for the following ORDERS:

i. Determining that the RESPONDENT breached the contract agreement by failing and refusing to pay him all his outstandings total NGN 1,500,000 […] in Nigeria Currency plus 5% interest p.a. until the date of effective payment.

ii. Holding the RESPONDENT responsible for the breach of the employment contract and determining the payment of compensation to the claimant.

iii. AND such other ORDERS or further ORDERS as the DISPUTE RESOLUTION CHAMBER may deem fit to make in this circumstances.”

BREAKDOWN OF PAYMENT:

1. Outstanding Salaries April, 2017 and September to December 2017. NGN 1,500,000.”

5. In his claim, the player deemed that the club “never paid the Claimant his monthly salaries as agreed in the contract agreement” despite being put in default several times.

6. Moreover, the player argued that once he “faced the violation” the club sent a letter on 29 November 2017 informing the player that “he is being released from his present employment contract based on the expiration of his contract with the Club effective from 30th September, 2017”.

7. The player, however, argued that it was “backdated” and never signed by him.

8. In its reply, the club deemed that it paid the player’s salary for April 2017, which was agreed between the parties to be NGN 147,000.

9. Furthermore, the club argued that it paid all salaries until September “when his contract expired”. In support of its statements, the club provided documents titled “payment vouchers” which were not signed by the player.

10. The player remained unemployed since his employment with the Respondent.

II. Considerations of the DRC judge

1. First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: the DRC judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 29 May 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.

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 January 2020) he is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Cameroonian player and a Nigerian 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 January 2020), and considering that the present claim was lodged on 29 May 2019, the June 2018 edition of said regulations (hereinafter: the 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. Subsequently, the DRC judge continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. 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 Annex 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 TMS.

5. In this respect, the DRC judge acknowledged that the parties to the dispute had signed a valid employment contract on 1 April 2017, in accordance with which the Respondent would pay the Claimant a monthly salary in the amount NGN 300,000.

6. In continuation, the DRC judge acknowledged that on 29 May 2019, the Claimant lodged a claim against the Respondent in front of FIFA, alleging that, on that date, the following amounts remained outstanding:

- NGN 300,000, corresponding to the salary for April 2017;

- NGN 300,000, corresponding to the salary for September 2017;

- NGN 300,000, corresponding to the salary for October 2017;

- NGN 300,000, corresponding to the salary for November 2017;

- NGN 300,000, corresponding to the salary for December 2017.

7. In this context, the DRC judge referred to art. 25 par. 5 of the Regulations, according to which the Dispute Resolution Chamber shall not hear any case subject to the Regulations if more than two years have elapsed since the event giving rise to the dispute. Considering that the claim of the Claimant was lodged on 29 May 2019 only, the DRC judge found that he could not enter into any claim for salaries that fell due prior to 29 May 2017.

8. Taking into account the previous considerations, the DRC judge preliminarily concluded that the Claimant’s request for salaries accrued before the date of 29 May 2017 was barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations.

9. Subsequently, the DRC judge acknowledged that the parties dispute the manner and the date of the termination of the contract. While the player claims that the club terminated the contract with its letter dated 29 November 2017, the club deemed that the contract “expired” in September 2017.

10. In view of the foregoing, the DRC judge deemed that the first issue to be solved is how the contract was terminated and on which date. In so doing, the DRC judge proceeded with an analysis of the parties’ arguments as well as of the documentation on file, bearing in mind the wording of 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. Bearing in mind the foregoing, the DRC judge analysed the termination letter that was provided by both parties and noted that while referring to the termination of the contract on 30 September 2017, it was dated 29 November 2017. Thus the DRC judge concluded that the contract was terminated by the club on 29 November 2017.

12. Having established the foregoing, the DRC judge noted that, on the one hand, the player claims that the club did not pay any salary for September to December 2017. On the other hand, the club argued that it paid the salary for September 2017 and in support of its statement provided a document titled “payment voucher”.

13. The DRC judge proceeded in analysing said document and noted that it was not signed by the player. Moreover, the DRC judge emphasised that this document was not issued by any bank, but was simply a list created and signed by the club. As such, the DRC judge could not accept this document as sufficient evidence that the salary for September 2017 was paid.

14. Continuously, the DRC judge deemed that the underlying issue in this dispute was to determine whether the termination of the contract by the club was made with or without just cause, and subsequently, if it were found that the contract was terminated without just cause, to determine the consequences of such early termination by the club.

15. In this respect, the DRC judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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.

16. In view of the above, the DRC judge observed that the club did not submit any reason for the termination of the contract.

17. As a result of the foregoing, due to the lack of arguments and evidence provided by the club, the DRC judge came to the conclusion that, by means of its letter dated 29 November 2017, the club terminated the contract with the player without just cause.

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 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.

19. Bearing in mind the above, the DRC judge accepted the player’s claim for outstanding remuneration and in accordance with the general legal principle of pacta sunt servanda, the DRC judge decided that the club is liable to pay to the player the amount of NGN 900,000 with regard to the remuneration due to him between September and November 2017.

20. Furthermore, considering the player’s claim for interest and also taking into account the DRC’s longstanding jurisprudence, the DRC judge ruled that the Respondent must pay 5% interest p.a. as from 29 May 2019 until the date of effective payment.

21. 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 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 Claimant 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 he first of all had to clarify as to whether the pertinent employment contract contains 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 members of the DRC judge determined that the amount of compensation payable by the 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. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. In this regard, the DRC judge emphasised beforehand that each request for compensation for contractual breach has to be assessed by the DRC judge on a case-by-case basis taking into account all specific circumstances of the respective matter.

24. The DRC judge then turned his attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by the DRC judge to be essential. The DRC judge deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the DRC judge to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation.

25. Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from the date of termination with just cause by the Claimant until its natural expiration, bearing in mind that he would have received in total NGN 300,000 as remuneration for the month of December 2017. Consequently, the Chamber concluded that the amount of NGN 300,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

26. 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 enabled to reduce his loss of income.

27. In respect of the above, the DRC judge noted, that according to the information contained in TMS, the player had not signed a new employment contract after 29 November 2019 and therefore had not been able to mitigate his damages. Therefore, no further deductions should be made to the amount of NGN 300,000, in accordance with art. 17 par. 1 lit. i) of the Regulations.

28. Consequently, on account of the above-mentioned considerations, the DRC judge decided to accept the Claimant’s claim and held that the Respondent must pay the amount of NGN 300,000 as compensation for breach of contract to the Claimant, which is considered by the DRC judge to be a fair and reasonable amount.

29. In addition, taking into account the player’s request and the DRC’s well-established jurisprudence, the DRC judge decided that the club must pay to the player interest of 5% p.a. on the amounts of 300,000 as of the date on which the claim was lodged, i.e. 29 May 2019, until the date of effective payment.

30. 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.

31. 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.

32. 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.

33. Moreover, the DRC judge recalled that the above-mentioned sanction 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.

34. Finally, the DRC judge concluded his deliberations in the present matter by establishing that any further claims lodged by the player are rejected.

III. Decision of the DRC judge

1. The claim of the Claimant, Hele Hele Isaac, is partially accepted insofar as it is admissible.

2. The Respondent, Sunshine Stars FC, has to pay to the Claimant the amount of NGN 900,000, plus 5% interest p.a. as from 29 May 2019 until the date of effective payment.

3. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of NGN 300,000, plus 5% interest p.a. as from 29 May 2019 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 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 points 2. and 3. above.

6. The Respondent shall provide evidence of payment of the due amounts in accordance with points 2. and 3. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amounts due in accordance with points 2. and 3. above 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 point 7. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

9. In the event that the amounts due in accordance with points 2. and 3. above 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.

*****

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 motivated decision (legal remedy):

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 (CAS)

Avenue de Beaumont 2, CH-1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

e-mail: info@tas-cas.org

For the DRC judge:

Emilio García Silvero

Chief Legal & Compliance Officer