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 19 February 2020

Decision of the Dispute Resolution Chamber (DRC) judge

passed on 19 February 2020,

by Mr Daan de Jong (Netherlands), DRC judge,

on the claim presented by the player,

Alberico Barbosa da Silva, Brazil

represented by Mr Daniel Cravo

as “Claimant”

against the club

Akwa United Football Club, Nigeria

represented by Mr Peter Ime Akpan

as “Respondent”

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 13 November 2018, the Brazilian player, Mr Alberico Barbosa da Silva (hereinafter: the player or the Claimant) concluded an employment contract (hereinafter: the first contract) with the Nigerian club, Akwa United Football Club (hereinafter: the club or the Respondent) (hereinafter jointly referred to as: the parties). The contract was valid for the season 2018/2019.

2. According to art. 1 of the first contract, the player was entitled to a monthly salary of Nigerian Naira (NGN) 850,000, as well as bonuses as follows:

- NGN 30,000 per home win;

- NGN 30,000 per away draw;

- NGN 50,000 per away win.

3. On 19 November 2018, the parties concluded a new employment contract (hereinafter: the second contract), valid as from the date of signature until 18 November 2020.

4. According to art. 2 of the second contract, the Respondent undertook to pay to the Claimant a monthly salary of NGN 850,000, due at the end of each month. In addition, art. 2 stipulates that “(t)he player shall be entitled to all the bonuses that the club may decide to award whether for any particular match or for any silverware or any other achievement in which he played a role during the duration of this contract” .

5. By means of a letter dated 19 June 2019 addressed to the Respondent, the Claimant indicated that “(a)s a consequence of the Coach and the Assistant Coach suspension, the Club has ordered the Player to train separately from the other players of the first team, without any grounds, which per se, is causing severe damages for his career.” The Claimant also contested the Respondent’s decision not to include the player in the team for the next matches. Moreover, the Claimant indicated that the Respondent was still in possession of his passport, which he considered to be “another grave conduct”. In light of the foregoing, the Claimant requested that the Respondent immediately returns his passport and reintegrates him to the first team’s training sessions and matches. In this regard, the Claimant granted the Respondent 48 hours to reply.

6. On 20 June 2019, the Respondent sent a letter to the Claimant, with the subject “(e)nd of Nigeria League Season and Expiration of Contract”. In particular, the Respondent indicated that the season ended on 12 June 2019, thanked all the people involved in the successful season of the club and stated that the club “will get in touch as to the resumption date for the new season which starts early August 2019.”

7. On 16 August 2019, the Claimant informed the Respondent that he is “at the Club’s disposal to resume his activities and to represent the Club in the Nigerian season of 2019/2020.” In this regard, the Claimant requested airfare tickets to return to Nigeria in due course. Moreover, the Claimant also informed the Respondent of outstanding remuneration still due to him, as follows:

- NGN 170,000 as performance bonus;

- NGN 850,000 as the monthly salary of July 2019;

- NGN 2,500,000 as the sign-on fee;

- USD 1,000 “in connection with the fine paid to the Nigerian Government to allow the Player’s return to Brazil, due to the retention of the Player passport by the Club, which turned impossible for him to regulate his working visa”.

8. By means of another letter dated 19 August 2019, the Claimant referred to a WhatsApp message from the Respondent, asking him to return to Nigeria and to start training on 19 August 2019. In this context, the Claimant granted the Respondent 24 hours to indicate if it was still interested in the services of the player, and if so, to provide him with airfare tickets to return to Nigeria. In these circumstances, the Claimant indicated that he would consider the contract terminated with just cause if the Respondent did not reply within 24 hours. Finally, the Claimant reiterated his request for the payment of the amounts detailed in his correspondence dated 16 August 2019.

9. On 24 August 2019, the Claimant sent a letter to the Respondent, reiterating the content of his previous correspondence and granted the Respondent a deadline until 31 August 2019 to remedy the situation.

10. With a letter dated 3 September 2019, the Claimant put the Respondent in default to pay within 15 days his monthly salaries of July and August 2019, as well as the other outstanding amounts as detailed in his correspondence dated 16 August 2019. The Claimant further indicated that failure to pay said amounts would result in the termination of the contract with just cause.

11. On 23 September 2019, the Claimant informed the Respondent of the termination of the contract (hereinafter: the termination notice).

12. On 15 October 2019, the Claimant lodged a claim against the Respondent in front of FIFA.

13. In his claim, the Claimant held that he was forced to train alone as from 10 June 2019 and that despite his complaints, this situation persisted. The Claimant also emphasized that he always complied with his contractual obligations.

14. In addition, the Claimant explained that he left Nigeria on 27 June 2019, with the prior approval of the Respondent. However, he was forced to pay a fine in the amount of USD 1,000 at the Nigerian airport as he did not have a residence permit.

15. Moreover, the Claimant considered to have made efforts to contact the club in order to find out when he had to resume work in Nigeria and to obtain airfare tickets. Despite the foregoing, the Claimant explained that no airfare tickets were ever provided by the Respondent.

16. In this context, the Claimant mentioned having put the Respondent in default numerous times, granting the latter various deadlines. However, the Respondent never answered.

17. Therefore, in light of the above, the Claimant considered to have terminated the contract with just cause in accordance with Art. 14bis of the Regulations on the Status and Transfer of Players.

18. Consequently, the Claimant requested the payment of the following amounts, plus interest of 5% p.a. as from the due dates:

- NGN 1,700,000 corresponding to his salaries of July and August 2019;

- NGN 2,500,000 corresponding to the sign-on fee;

- NGN 170,000 corresponding to performance bonuses;

- USD 1,000 corresponding to the fine paid by the Claimant to the “Nigerian Government due to the undue retention of his passport by the Respondent”;

- Compensation for breach of contract taking into account the Claimant’s monthly remuneration of NGN 850,000;

19. In addition, the Claimant requested the imposition of sporting sanctions on the Respondent and asked that the Respondent bears all the costs of the proceedings.

20. In spite of being invited to do so, the Respondent failed to submit a reply to the claim.

21. On 4 February 2020, the Claimant informed FIFA that he had not concluded any new employment contract following the termination notice dated 23 September 2019.

II. Considerations of the Dispute Resolution Chamber judge

1. First, the Dispute Resolution Chamber judge (hereinafter also referred to as: the judge) analysed whether he was competent to deal with the matter at stake. In this respect, he took note that the present matter was submitted to FIFA on 15 October 2019. Consequently, the 2018 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the judge referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2020), the Dispute Resolution Chamber judge was competent to decide on the present matter, which concerns an employment-related dispute between a Brazilian player and a Nigerian club.

3. In continuation, the 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 2 of the Regulations on the Status and Transfer of Players (edition 2020), and considering that the present claim was lodged on 15 October 2019, the October 2019 edition of said regulations (hereinafter: Regulations) were applicable to the matter at hand as to the substance.

4. The competence of the Dispute Resolution Chamber judge and the applicable regulations having been established, the judge entered into the substance of the matter. In this respect, he started by acknowledging all the above-mentioned facts, the arguments and the documentation submitted by the Claimant. However, the 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.

5. In this respect, the judge observed that the Respondent failed to submit a reply to the claim. With this in mind, the judge recalled the content of art. 9 par. 3 second sentence of the Procedural Rules, according to which a decision shall be taken upon the basis of the documents already on file if no statement or reply is received before the time limit expires.

6. Having established the above, the judge took note that the parties first concluded an employment contract on 13 November 2018, following which they signed a second employment contract on 19 November 2018.

7. In this context, the judge determined that the first issue to be resolved was the applicability of the first contract and the second contract to the present dispute.

8. At this point, the judge observed that both contracts were signed by the parties, 5 days apart. The judge further analysed the content of the first contract and the second contract and concluded that both contracts covered the same subject matter. Therefore, the judge was of the opinion that it must have been the parties’ intention to only consider the second contract as the valid and binding document governing their contractual relationship.

9. With those considerations in mind, the judge considered that the second contract superseded the first contract. As such, the judge stated that only the second contract signed on 19 November 2018 will be taken into account for the assessment of the matter at hand.

10. The Dispute Resolution Chamber judge then observed the argumentation of the Claimant and noted, in particular, that the Claimant argued to have terminated the contract with just cause and in these circumstances, requested the payment of outstanding remuneration and compensation for breach of contract, as well as other amounts such as a sign-on fee, performance bonuses and the reimbursement of a fine.

11. In this context, the judge deemed that the second underlying issue in the present dispute was to determine whether the contract had been unilaterally terminated with or without just cause by the Claimant on 23 September 2019 and the consequences thereof.

12. The judge first emphasised that prior to the termination notice, the Claimant had sent four letters to the Respondent, indicating the outstanding amounts due to him and granting the Respondent various deadlines to comply with its financial obligations. In particular, the judge observed that in his letter dated 3 September 2019, the Claimant granted the Respondent a deadline of 15 days to pay 2 monthly salaries, as well as other amounts.

13. The judge further noted that by means of the letters sent to the Respondent, the Claimant also requested sporting measures, such as his reintegration into the first team and airfare tickets to return to Nigeria.

14. At this stage, the judge deemed it necessary to recall the content of Art. 14bis par. 1 of the Regulations, which reads as follows: “In the case of a club unlawfully failing to pay a player at least two monthly salaries due on their due dates, the player will be deemed to have a just cause to terminate his contract, provided that he has put the debtor club in default in writing and has granted a deadline of at least 15 days for the debtor club to fully comply with its financial obligation(s).”

15. With this established, the judge concluded that on the date of the termination notice, i.e. 23 September 2019, two monthly salaries were outstanding in favour of the Claimant, as well as other amounts claimed by the latter.

16. Therefore, in view of all the aforementioned, the judge was of the firm opinion that the Claimant terminated the contract with just cause on 23 September 2019. As such, the Respondent should be held liable for the early termination of the contract.

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

18. First of all, the judge reverted to the Claimant’s claim, which included the outstanding amount of NGN 1,700,000 relating to the monthly salaries of July and August 2019.

19. Consequently, taking into account that the contract was terminated on 23 September 2019, and in accordance with the general legal principle of pacta sunt servanda, the judge decided that the Respondent is liable to pay the amount of NGN 1,700,000 corresponding to the monthly salaries of July and August 2019.

20. In addition, taking into account the Claimant’s request, the judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of NGN 1,700,000 as from the due dates until the effective date of payment.

21. In continuation, the 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 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 judge held that it 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 judge established that no such compensation clause was included in the 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 other parameters set out in art. 17 par. 1 of the Regulations. The 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.

24. Bearing in mind the foregoing as well as the claim of the Claimant, the judge proceeded with the calculation of the monies payable to the Claimant under the terms of the contract until 18 November 2020. In view of the foregoing, the judge observed that the residual value of the contract is NGN 12,750,000, corresponding to fifteen monthly salaries of NGN 850,000, which shall serve as the basis for the final determination of the amount of compensation for breach of contract.

25. In continuation, the 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”).

26. In this context, the judge noted that the Claimant remained unemployed during the relevant period, making it impossible for him to reduce his loss of income.

27. Consequently and on account of all of the above-mentioned consideration and the specificities of the case at hand, the judge decided that the Respondent must pay the amount of NGN 12,750,000 to the Claimant which was considered reasonable and proportionate as compensation for breach of contract in the case at hand.

28. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber judge in this regard, the judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation, i.e. NGN 12,750,000 as of 23 September 2019 until the date of effective payment.

29. Having established the above, the judge took note of the Claimant’s requests for the payment of NGN 2,500,000 and NGN 170,000, corresponding to a sign-on fee and performance bonuses, respectively. The judge, however, noted that these requests were not based on any contractual provision, nor were they substantiated. Therefore, the judge decided to reject these requests.

30. Finally, the judge decided to reject the request for the payment of USD 1,000, corresponding to the fine allegedly paid by the Claimant, due to the lack of evidence provided.

31. In light of the above, the judge concluded his deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

32. 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.

33. In this regard, the 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.

34. Therefore, bearing in mind the above, the Dispute Resolution Chamber 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.

35. Finally, the 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.

III. Decision of the Dispute Resolution Chamber judge

1. The claim of the Claimant, Alberico Barbosa da Silva, is partially accepted.

2. The Respondent, Akwa United Football Club, has to pay to the Claimant the amount of Nigerian Naira (NGN) 1,700,000 as outstanding remuneration, plus interest until the date of effective payment as follows:

a. 5% p.a. as of 1 August 2019 on the amount of NGN 850,000;

b. 5% p.a. as of 1 September 2019 on the amount of NGN 850,000.

3. The Respondent has to pay to the Claimant the amount of NGN 12,750,000 as compensation for breach of contract, plus interest of 5% p.a. as of 23 September 2019 until the date of effective payment.

4. Any further claim of 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 amount mentioned under points 2. and 3. above.

6. The Respondent shall provide evidence of payment of the due amount in accordance with points 2 and 3. above 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 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 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).

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 aforementioned sum plus interest 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.

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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 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.

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

For the DRC judge:

Emilio García Silvero

Chief Legal & Compliance Officer