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 8 May 2020

Decision of the

Dispute Resolution Chamber

passed on 8 May 2020,

in the following composition:

Geoff Thompson (England), Chairman

José Luis Andrade (Portugal), member

Stijn Boeykens (Belgium), member

on the claim presented by the player,

Derrick Sasraku, Ghana,

represented by Mr Yussif Alhassan Chibsah

as Claimant

against the club,

Club Africain, Tunisia,

represented by Mr Abdelhamid Abed

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. In August 2018, the Ghanaian player, Derrick Sasraku (hereinafter: the player or the Claimant) and the Tunisian club, Club Africain (hereinafter: the club or the Respondent) signed an employment contract (hereinafter: the first employment contract), valid as from 15 August 2018 until 30 June 2021.

2. On 3 June 2019, the player terminated the first employment contract with the club after having put in default of payment and subsequently lodged a claim against the Respondent for breach of contract.

3. After some payments were made by the Respondent, the Claimant withdrew his claim and the parties entered into a “settlement agreement” (hereinafter: the settlement agreement) on 29 July 2019.

4. According to art. 1 of the settlement agreement, the Respondent recognised that the player terminated the first employment contract with just cause on 3 June 2019, but that the club has “committed now to comply with its prior and future contractual obligations” and that “the player is willing to start playing for [the Respondent] again”.

5. According to art. 4 of the settlement agreement, “the parties confirm that the employment relationship between them will end on 30 June 2020”.

6. According to art. 6 of the settlement agreement, “the club confirms having an outstanding debt towards the player of USD 53,774 net [and] this amount will be paid (…) as follows:

I. The amount of USD 20,000 (…) net shall be paid by no later than 31 July 2019;

II. The amount of USD 20,000 (…) net shall be paid by no later than 1 October 2019;

III. The amount of USD 13,774 (…) net shall be paid by no later than 1 December 2019.”

7. According to art. 7 of the settlement agreement, the club “shall be liable to pay interest to the player on any delayed payment at a rate of 18% (…) per annum.”

8. According to art. 8 of the settlement agreement, “in the event that [the Respondent] fails to pay to the player one of the above-mentioned instalments within the specified deadline, the Club shall pay an additional fee corresponding to 50% (…) of the relevant amount as a penalty fee to the player per instalment paid late.”

9. According to art. 9 of the settlement agreement, “for the 2019/2020 season, the player will be entitled to a monthly salary of USD 3,000 (…) net, payable by the last day of each month. The first payment is due on 31 July 2019 and the last payment is due on 30 June 2020. In total, 12 payments of USD 3,000 net shall be paid to the player during the 2019/2020 season.”

10. According to art. 10 of the settlement agreement, “as to the lump sum payments for the season 2019/2020 season, the player is entitled to the total amount of USD 64,000 payable as follows:

I. The amount of USD 16,000 (…) net shall be paid by no later than 15 September 2019;

II. The amount of USD 16,000(…) net shall be paid by no later than 15 December 2019;

III. The amount of USD 16,000(…) net shall be paid by no later than 15 February 2020;

IV. The amount of USD 16,000(…) net shall be paid by no later than 15 May 2020.”

11. According to art. 11 of the settlement agreement, the club “shall be liable to pay interest to the player on any delayed payment or outstanding payment under par. 9 and 10 above, from the date it fell due until the date of actual payment at a rate of 18% (…) per annum.”

12. According to art. 16 of the settlement agreement, “if in the future any party terminates the contractual relationship without just cause, as referred to in art. 17 of the FIFA Regulations on the Status and Transfer of Payers, it will pay the other party the full residual value of the contract. The parties agree that one party terminating the contract with just cause equals that the other party terminated the contract without just cause.”

13. On 10 October 2019, the Claimant put the Respondent in default, arguing that in application of the settlement agreement, he had only received USD 20,000 on 9 August 2019, and requested the following payments to be done within the next ten days:

- USD 3,000 due as the salary for July 2019;

- USD 3,000 due as the salary for August 2019;

- USD 3,000 due as the salary for September 2019;

- USD 20,000 as the payment due on 1 October 2019 in accordance with art. 6 lit. ii of the Settlement Agreement;

- USD 16,000 as the payment due on 15 September 2019 in accordance with art. 10 of the Settlement Agreement.

14. On 26 November 2019, the Claimant reiterated his default notice acknowledging some payments, but requesting USD 22,422 as well as 18% interest. He further requested the payment of the additional penalties as provided in the settlement agreement. He gave 7 days for the Respondent to pay.

15. In particular the Claimant acknowledged the following payments:

- TND 39,444 and TND 16,896 (total TND 56,340) on 14 & 17 October 2019 (equal to USD 19,643) - we assume this payment corresponds to the payment due on 1 October 2019 (art. 6 lit. ii. of the Settlement Agreement);

- TND 8,403 on 18 October 2019 (equal to USD 2,935) - we assume this payment corresponds to the salary of July 2019, payable on 31 July 2019;

- TND 8,500 on 18 November 2019 (equal to USD 3,000) - we assume this payment corresponds to the salary of August 201.9, payable on 31 August 2019;

16. In continuation, the Claimant requested the payment of the following:

- USD 357 as the remaining part of the payment due on 1 October 2019 (USD 20,000 minus USD 19,643 = USD 357);

- USD 65 as the remaining part of the salary of July 2019 (USD 3,000 minus USD 2,935 = USD 65);

- USD 3,000 for the salary of September 2019;

- USD 3,000 for the salary of October 2019;

- USD 16,000 as the payment on 15 September 2019 in accordance with art. 10 of the Settlement Agreement.

17. He reiterated his default notice on 4 and 13 December 2019, granting respectively 5 and 3 days for the Respondent to pay.

18. According to the Claimant, as from 10 January 2020, he was no longer allowed to train with the team, was made aware of a training on 13 January 2020 for the same day and missed the training on 14 January 2020.

19. According to the Claimant, when he returned on 15 January 2020 to training, he was only allowed to train alongside the injured players.

20. On 13 January 2020, the player reiterated his default notice, requesting the outstanding payments to be made by no later than 16 January 2020 and additionally requested his reintegration to the training sessions.

21. According to the Claimant, he was offered on 22 January 2020 USD 15,000 to amicably terminate the contract, but the Claimant refused arguing that the outstanding due to him was much higher than the amount offered.

22. On 22 January 2020, the player unilaterally terminated the contractual relationship arguing that the Respondent did not comply with its obligations despite several default notices.

23. On 24 January 2020, The Claimant lodged a claim against the Respondent in front of FIFA, for outstanding remuneration and compensation for breach of the contract, requesting the total amount of USD 128,239, corresponding to:

- “USD 52,314 net as outstanding salaries + 18% interest as from the relevant payment dates until the date of effective payment, specified as follows:

o USD 357 as the outstanding part of the payment due on 1 October 2019 + 18% p.a. as from 2 October 2019;

o USD 65 as the outstanding part of the salary of July 2019 + 18% interest p.a. as from 1 August 2019;

o USD 3,000 as the salary of September 2019 _ 18% interest p.a. as from 1 October 2019;

o USD 118 for the remaining part of the salary of November 2019 + 18% interest p.a. as from 1 December 2019;

o USD 3,000 for the salary of December 2019 + 18% interest p.a. as from 1 January 2020;

o USD 16,000 as the payment due on 15 September 2019 in accordance with art. 10 of the settlement agreement + 18% interest p.a. as from 16 September 2019;

o USD 13,774 as the payment due on 1 December 2019 + 18% interest p.a. as from 2 December 2019;

o USD 16,000 as the payment due on 15 December 2019 in accordance with art. 10 of the settlement agreement + 18% interest p.a. as from 16 December 2019.

- USD 26,887 as outstanding additional fines;

- 18% interest on all amounts paid late, calculated as follows:

o 18% interest over USD 2,935 as from 1 August until 18 October 2019;

o 18% interest over USD 3,000 as from 1 September until 18 November 2019;

o 18% interest over USD 3,000 as from 1 November until 13 December 2019;

o 18% interest over USD 2,882 as from 1 December until 13 December 2019;

o 18% interest over USD 20,000 as from 1 August until 9 August 2019;

o 18% interest over USD 20,000 as from 2 October until 17 October 2019;

- The value of one flight ticket Tunisia – Ghana;

- USD 47,038 net as the amount due as compensation for breach of contract + 18% interest as from the date of the claim until the date of effective payment;

- USD 2,000 as legal costs.”

24. In its reply to the claim, the Respondent argued that the settlement agreement was not redacted in its official language and that it did not contained its stamp, and therefore should be disregarded.

25. Then, the Respondent argued that the requests for the outstanding amounts on the USD 20,000 instalment of October 2019, the salary of July 2019 and the salary of November 2019 were unfounded, as the amounts were paid but that the Claimant failed to acknowledge the bank costs and currency conversions.

26. Finally, the Respondent argued that the Claimant had been paid his salaries of December 109, January 2020 and February 2020 and provided receipts: the first receipt dated 13 December 2019 is signed by the Claimant and is a confirmation that he received TD 16,887 “relating to the salaries of October and November 2019”; the second receipt is dated 17 January 2020, not countersigned by the Claimant and stipulates that USD 3,000 were paid to the player as the salary of February 2020.

27. Upon request of the FIFA administration, the player informed that he signed a new employment contract with the Ghanaian club Medeama SC on 14 March 2020, according to which he would be entitled to receive a monthly remuneration of Ghana Cedis (GC) 3,500, which corresponds to USD 600.

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 24 January 2020. 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 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition March 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 Tunisian club.

3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition March 2020), and considering that the claim was lodged on 24 January 2020, the January 2020 edition of the aforementioned regulations (hereinafter: the 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 the documentation submitted by the parties. However, the Chamber 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. In particular, the Chamber 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. Having said this, 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.

6. First of all, the members of the Chamber acknowledged that, in August 2018, the player and the club had concluded a first employment contract valid as from 15 August 2018 until 30 June 2021, but that the Claimant had unilaterally terminated the first employment contract on 3 June 2019 on the basis of unpaid remuneration.

7. Furthermore, the DRC took note that the player lodged a claim in front of FIFA in this respect, a claim that was withdrawn in or around July 2019 upon the signature of the settlement agreement by the player and the club on 29 July 2019.

8. In particular, the Chamber remarked that within this agreement, the Respondent recognised that the Claimant had “just cause” to terminate the first employment contract (cf. I.4. above), but that the parties committed to enter in a new contractual relationship starting as from the date of signature until 30 June 2020.

9. In this respect, the DRC observed that the club, inter alia, committed to the payment of a monthly remuneration of USD 3,000 for twelve months as well as four lump sum payments of USD 16,000 each throughout the duration of the new employment relationship concluded within the settlement agreement. In addition, the Chamber noted that the Respondent recognised a debt of USD 53,774 towards the Claimant and

10. The DRC also remarked that the settlement agreement foresaw specific interest rates for any delay in paying the aforementioned sums, as well as penalties (cf. I.7, 8 and 11 above).

11. Moreover, the Chamber noted that after having put the club in default on 10 October 2019, 26 November 2019 and 13 January 2020, the player unilaterally terminated the contract on 22 January 2020 invoking just cause based on outstanding remuneration.

12. Moreover, the DRC took note that, according to the player, he had just cause to unilaterally terminate the employment contract on 6 January 2020, since no payment had been made by the club in this respect.

13. Subsequently, the members of the DRC took note that the Respondent, for its part, did not contest that it didn’t pay the player the salary for October, November and December 2019 because of the difficult financial situation in Lebanon and that payments could only be made in cash.

14. In continuation, the Chamber observed that the Respondent claimed that the player rejected to receive the payment by cheque.

15. In light of the foregoing, the DRC considered that the underlying issue in this dispute, considering the parties’ position, was to determine as to whether the player had just cause to terminate the employment contract and to determine the consequences thereof.

16. In this context, the Chamber deemed it appropriate to clarify that, in accordance with art. 12 par. 3 of the Procedural Rules, in the present case, the Respondent bore the burden of proving either the payment of the Claimant’s salaries or that it had a valid reason for not having done so.

17. In addition, the Chamber recalled that the club referred to the difficult financial situation in Lebanon in order to justify its non-payment of the player’s outstanding salaries.

18. However, the Chamber wished to stress that, in line with its well-established jurisprudence, a club’s or country’s financial difficulties cannot be considered a valid justification for non-compliance with its essential contractual obligation deriving from the signature of an employment contract, that is, to pay a player’s remuneration in full and in a timely manner.

19. In view of the above, the DRC concluded that the Respondent did not bring any valid reason to justify the delay in paying the player’s remuneration.

20. In continuation, the Chamber highlighted that on the basis of the parties’ submissions, it could be noted that the Respondent did not contest that, by the time the player terminated the contract, at least three monthly salaries were outstanding. Moreover the members of the DRC observed that it also remained undisputed that the player provided the Respondent with 15 days to remedy its default.

21. What is more, taking into account the consideration under point. II./3. above, the DRC referred to art. 14bis par. 1 of the Regulations, which, inter alia, stipulates that, in the case of a club unlawfully failing to pay a player at least two monthly salaries 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).

22. Consequently, on account of the above and considering that, when the player terminated the contract, three monthly salaries were due despite having the player provided the Respondent with 15 days to remedy the default, the DRC concluded that, on 6 January 2020, the player had just cause to unilaterally terminate the employment contract.

23. As a result, the Chamber decided that the Respondent is to be held liable for the early termination of the employment contract with just cause by the player.

24. Having established that the Respondent is to be held liable for the early termination of the employment contract, the DRC focused his attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC established that the player 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.

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

26. Consequently, and bearing in mind that the player terminated his employment contract on 6 January 2020, the Chamber decided that the Respondent is liable to pay to the player outstanding remuneration in the amount of USD 19,092, pertaining to his monthly salaries of October, November and December 2019.

27. In addition, taking into consideration the specific request of the player on the point, the Chamber decided to award the latter interest at the rate of 5% p.a. on the total amount of EUR USD 19,092 as follows:

a. 5% interest p.a. as from 1 November 2019 until the date of effective payment on the amount of USD 6,364;

b. 5% interest p.a. as from 1 December 2019 until the date of effective payment on the amount of USD 6,364;

c. 5% interest p.a. as from 1 January 2020 until the date of effective payment on the amount of USD 6,364.

28. Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the player is entitled to receive compensation for breach of contract from the club.

29. In continuation, the DRC focused his 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 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.

30. In application of the relevant provision, the Chamber held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber observed that the employment contract does not contain any such clause.

31. As a consequence, the members of the Chamber determined that the amount of compensation payable by the club to the player 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 Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from its termination and concluded that the player would have been entitled to receive USD 38,184 as remuneration had the employment contract been executed until its regular expiry date, i.e. 30 June 2020. Consequently, the Chamber concluded that the amount of USD 38,184 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

32. In continuation, the Chamber assessed 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. In this respect, the DRC deemed it necessary to refer to the first sentence of art. 17 par. 1 lit. ii) of the Regulations, according to which, in case the player signed a new contract by the time of the decision, the value of the new contract for the period corresponding to the time remaining on the prematurely terminated contract shall be deducted from the residual value of the contract that was terminated early (the ”Mitigated Compensation”).

28. In respect of the above, and according to the information contained in the TMS, the Chamber recalled that, on 24 January 2020, the Claimant signed an employment contract with the Tunisian club, ES Metlaoui, valid as from 124 January 2020 until 30 June 2021, according to which, he would be entitled to earn Tunisian Dinar (TD) 12,000 over the relevant period, which is approximately USD 4,242. On account of the above, such amount shall be deducted, leading to a mitigated compensation in the amount of USD 33,942.

33. Subsequently, the Chamber turned its attention to the second sentence of art. 17 par. 1 lit. ii) of the Regulations, according to which, in addition to the mitigated compensation, the player shall be entitled to an additional compensation of three monthly salaries, subject to the early termination of the contract being due to overdue payables, whereby the overall compensation may never exceed the rest value of the prematurely terminated contract.

34. With the above in mind, the Chamber decided to award the Claimant additional compensation in the amount of USD 4,242, in accordance with the above-mentioned provision.

35. Consequently, on account of all the above-mentioned considerations, the Chamber decided that the Respondent must pay the amount of USD 38,184 as compensation for breach of contract to the player.

36. Therefore, the DRC decided to partially accept the player’s claim and concluded its deliberations by rejecting any further claim of the player.

37. Furthermore, taking into account the consideration under number II./3. 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.

38. 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.

39. 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.

40. 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

2. The claim of the Claimant, Issaka Abudu, is partially accepted.

3. The Respondent, Nijmeh Sporting Club, has to pay to the Claimant, within 45 days as from the date of notification of this decision, the amount of USD 19,092 plus interest as follows:

a. 5% interest p.a. as from 1 November 2019 until the date of effective payment on the amount of USD 6,364;

b. 5% interest p.a. as from 1 December 2019 until the date of effective payment on the amount of USD 6,364;

c. 5% interest p.a. as from 1 January 2020 until the date of effective payment on the amount of USD 6,364.

4. The Respondent 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 38,184.

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

6. 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 mentioned under points 2. and 3. above.

7. 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).

8. In the event that the amount 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).

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

10. 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.

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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