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 29 January 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 29 January 2020,

in the following composition:

Geoff Thompson (England), Chairman

Alexandra Gómez Bruinewoud (Uruguay), member

Daan de Jong (the Netherlands), member

on the claim presented by the player,

Jerry Akaminko, Ghana

represented by Mr Nilo Effori and Ms Cintia R. Nicolau

as Claimant

against the club,

Ohod Club, Saudi Arabia

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 13 July 2019, the Ghanaian player Jerry Akaminko (hereinafter: the player or the Claimant) and the Saudi Arabian club, Ohod Club, (hereinafter: the club or the Respondent) concluded an employment contract (hereinafter: the contract) valid for a period of eleven months, i.e. as of 13 July 2019 until 12 June 2020.

2. In accordance with the contract, the player was entitled to receive from the club, inter alia, the total amount of USD 120,000, payable as follows: USD 25,000 on the date of signature of the contract, and USD 95,000 as salaries, payable in monthly installments of USD 8,636 at the end of each month. Further, in accordance with art. X of the contract: “If the club contract is cancelled before its date by one of the parties, the other party is obliged to pay a penalty of one month salary”.

3. On 4 August 2019, the club sent a letter to the player, which is herewith quoted verbatim and that reads as follows:

“The club wishes to cancel the contract with you starting from 13/07/19 to 12/06/2020.

We are ready to pay the penalty of the contract between us.

We are ready (too) pay for your salary for your staying time with us from 13.07.2019 to 03.08.2019 (20 twenty days).

You must return the advanced payment to you by: (8,000)$ - eight thousand dollars

You must return the money of (fly) tickets from Al-Medina-Accra-Cairo with budget (960)$ nine hundred sixty dollars.”

4. The player submitted he was segregated from his teammates following the aforementioned letter from the club, and that on 9 August 2019, the player sent the club a letter by means of which the latter was granted a deadline of 7 days to reinstate him and declare that the letter of 4 August was null and void.

5. On 17 August 2019, the club replied to the player’s letter and stated (quoted verbatim):

“We have received your email about the player: jerry akaminko on 2019/8/09.

We would like to inform you that if you accept the termination of the contract between the parties We will wave all amounts owed by you.

Which was delivered to you the amount (25000) twenty-five thousand dollars.

And agree to move to any other club

If you do not agree with that and do not sign the clearance

We assure you what happened earlier on 04/08/2019

And return you for all the money received.

Execution of the penalty clause in the contract and signed by you with the consent of paying only one salary.

Calculate the days that the Player trained with the club only.

And the amount of airline tickets that the club paid.”

6. On 19 August 2019, the player sent another letter to the club by means of which he granted it with a deadline of 3 days to reinstate him.

7. On 23 August 2019, the player terminated the contract in writing. In said termination notice, the player stated inter alia that:

“The Player has expressed from the beginning his wishes to be reinstated by the Club and fulfil the Contract;

Hence, since the Club has not reinstated the Player as stated in our letters of 9 and 19 August 2019, instead expressly reiterating its intention to impose the termination of the Contract rather than fulfilling its obligations thereof, the Player has no option but to deem that the Club terminated the Contract without just cause.”

8. On 15 September 2019, the player lodged a claim against the club before FIFA for breach of contract. The player requested the payment of the total amount of USD 120,908 corresponding to compensation for breach of contract, broken down as follows: USD 95,000 as the residual value of the contract and USD 25,908 as additional compensation. The player’ further requested to be awarded “interest on the outstanding compensation amount at a rate of 5% (five per cent) per annum until the date of the effective payment” and that sporting sanctions be applied on the Respondent.

9. In his claim, the Claimant held that he had fully complied with all requirements under the contract, and there were no incidents capable of setting off the club’s decision to terminate the contract. He further observed that the club’s letter of 4 August 2019 does not contain any cause for termination.

10. Additionally, the player held that upon receiving the club’s letter of 4 August 2019, he did everything he could to maintain the stability of the contract, but to no avail. The player submitted that he had no option but deem the Respondent to have terminated the contract without just cause for the latter failed to cure its default, or take any action towards maintaining the stability of the contract. The player finally submitted that no material breach has occurred that would lead to the Respondent’s just cause for termination.

11. Regarding the calculation of compensation, the Claimant deemed that article X of the contract cannot be considered a valid clause; therefore the Respondent could not legitimately terminate the Contract under said article X. In the player’s opinion, the aforementioned item should be deemed invalid by the Dispute Resolution Chamber as the respect of contractual freedom may not prevail over the principle of a proportionate repartition of the rights of the parties, nor the principle of fairness.

12. Further, the player submitted that since he only received the sign-on fee of USD 25,000, he is entitled to receive the residual value of the contract, which amounts to USD 95,000. Additionally, the player holds that based on Article 17 (1) (ii) of the FIFA Regulations on the Status and Transfer of Players, he has the right to receive three salaries as additional compensation, amounting to an additional payment of USD 25,908.

13. For its part, the club rejected the player’s claim and held that the player had had “no willingness or desire to perform the exercises well with the players”. The Respondent further alleged that “within ten days in the camp, [the player] did not play well, did not exercise well and did not want to do so”, and that the player had “often spoken with players about professionalism in Turkey and the Turkish Football League during the years when he was playing there”. The club further submitted that the player had shown “unwillingness to complete the [contract]” and “forced the [Respondent] to cancel [it]”. In the club’s opinion, the player displayed “bad conduct and disrespect”.

14. The club further held that article X. of the contract has to be considered valid and that upon signing said contract, the player had verbally and in written agreed to the aforementioned clause.

15. Finally, the club referred to art. 14 of the FIFA Regulations on the Status and Transfer of Players, and held that a contract may be terminated by either party without consequences of any kind either payment of compensation or imposition or sporting sanctions where there is just cause, and maintained that “there was abusive conduct of the player to contract with the club”.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) 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 15 September 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 members of the Chamber referred to art. 3 par. 1 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), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Ghanaian player and a Saudi club.

3. Furthermore, the Chamber 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 par. 2 of the Regulations on the Status and Transfer of Players (edition January 2020), and considering that the present claim was lodged on 15 September 2019, the June 2018 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and documentation on file. However, the DRC 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. The members of the Chamber started by acknowledging that the parties to the dispute had signed the contract on 13 July 2019 in accordance with which the Respondent would pay the Claimant a total salary of USD 120,000, of which USD 25,000 would be paid on the date of signature of the contract, and USD 95,000 as salaries.

6. In continuation, the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that the Respondent had breached the contract by terminating it without just cause and by failing to reinstate the player to the club’s main team after being required to do so in writing. In this regard, the Chamber acknowledged the documentation provided by the Claimant, consisting of a letter of the Respondent regarding its intention to “cancel” the contract, dated 4 August 2019. The Chamber further observed that, by means of his correspondences of 9 August 2019 and 19 August 2019, the Claimant reminded the Respondent of its situation of breach of contract. As the Respondent did not react to such reminders, the Claimant terminated the contract on 23 August 2019 and requested, by means of his claim before FIFA, the payment of USD 120,908 as compensation for breach of contract, interests and the imposition of sporting sanctions on the Respondent.

7. Thereafter, the members of the Chamber took note of the reply of the Respondent, who alleged that Claimant failed to demonstrate a professional conduct and to respect the contract, and that no consequences shall apply where termination is made with just cause.

8. In this respect, the Chamber referred to the documentation provided by the Claimant, and in particular to the club’s letter dated 4 August 2019 by means of which it manifested to the player its will to “cancel” the contract, and took note that the reasons therein included were not substantiated. The Chamber equally noted that the Respondent did not contest the allegations of the Claimant regarding his exclusion from the team; neither presented any documentation in this regard.

9. In view of the aforementioned facts, the DRC was of the opinion that the Claimant had founded reasons to believe that the Respondent was no longer interested in his services and that the latter would no longer provide him with any remuneration for his services.

10. As a consequence of all the aforementioned allegations combined with the documentation provided by the Claimant, the Chamber considered that the Respondent was to be considered responsible for the breach of contract without just cause, consisting of the Claimant’s exclusion from the team and its manifested unsubstantiated will to terminate the contract. Consequently, the Chamber concluded that the Claimant had a valid reason to terminate his contractual relation with the Respondent and that it should be considered as a well-founded just cause.

11. Having established the above, the Chamber turned its attention to the question of the consequences of the Respondent’s breach of the contract without just cause.

12. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive compensation from the Respondent for breach of contract without just cause.

13. The members of the Chamber firstly recalled 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.

14. In application of the relevant provision, the Chamber 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. The members of the Chamber recalled that according to article X of the contract, “If the club contract is cancelled before its date by one of the parties, the other party is obliged to pay a penalty of one month salary”. In particular, the DRC found that such clause is not entirely clearly drafted, as it refers to a penalty and not to liquidated compensation that is payable by one party to the other in case of breach. Accordingly, the members of the Chamber agreed that the wording of this clause is insufficiently clear for it to be taken into consideration in the determination of the amount of compensation.

15. Consequently, the members of the Chamber 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 Chamber 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 Dispute Resolution Chamber emphasised beforehand that each request for compensation for contractual breach has to be assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of the respective matter.

16. In order to estimate the amount of compensation due to the Claimant in the present case, the members of the Chamber first turned their 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 Chamber to be essential. The members of the Chamber deemed it important to emphasise the wording of art. 17 par. 1 lit. i) of the Regulations, according to which, as a general rule, in case the player did not sign any new contract following the termination of his previous contract, the compensation shall be equal to the residual value of the contract that was prematurely terminated.

17. The members of the Chamber then turned their attention to the fact that the Claimant did not sign any new contracts for the relevant period and, accordingly, the DRC proceeded to examine the remuneration and other benefits due to the Claimant under the existing contract.

18. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the contract as from its date of termination with just cause by the Claimant, i.e. 23 August 2019. To this extent, the DRC noted that under the contract the player was entitled to a total remuneration of USD 120,000, of which USD 25,000 had been paid by the date of the contract’s termination, as expressly recognised by the Claimant. Therefore, the Chamber concluded that the Claimant would have received USD 95,000 as remuneration had the contract been executed until its expiry date.

19. Notwithstanding, the Chamber turned its attention to the player’s request for compensation for breach of contract, and acknowledged that from the USD 120,908 requested, USD 25,908 correspond to additional compensation, as per article 17 para. 1 lit. ii) of the Regulations. To this extent, the DRC recalled that, under the aforementioned article of the Regulations, additional compensation shall be due in cases of breach of contract, in addition to the mitigated compensation, subject to the early termination of the relevant contract being due to overdue payables. Accordingly, the DRC agreed that the termination of the contract by the player, whilst with just cause, was not due to overdue payables and therefore decided to reject such request by the player.

20. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided to partially accept the Claimant’s claim and that the Respondent must pay the amount of USD 95,000 as compensation for breach of contract in the case at hand.

21. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date of the claim, i.e. 15 September 2019 until the date of effective payment.

22. Furthermore, taking into account the consideration under point II./20. above, the Chamber 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.

23. In this regard, the Chamber 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.

24. Therefore, bearing in mind the above, the DRC 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.

25. Finally, the Chamber 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.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Jerry Akaminko, is partially accepted.

2. The Respondent, Ohod Club, has to pay to the Claimant compensation for breach of contract in the amount of USD 95,000 plus interest at the rate of 5% p.a. over said amount as from 15 September 2019 until the date of effective payment.

3. Any further claim of the Claimant is rejected.

4. 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 point 2. above.

5. The Respondent shall provide evidence of payment of the due amount plus interest in accordance with point 2. 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).

6. In the event that the amount plus interest 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 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).

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 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 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 Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer