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:

Clifford E. Hendel (USA / France), Deputy Chairman

Alexandra Gomez Bruinewoud (Uruguay / the Netherlands), member

Stefano La Porta (Italy), member

on the claim presented by the player,

Idris Mbombo Ilunga, DR Congo

represented by Mr Lorin Burba

as Claimant / Counter-Respondent I

against the club,

Al-Hilal Khartoum SC, Sudan

represented by Mr Pedro Macieirinha

as Respondent / Counter-Claimant

and the club,

Nkana FC, Zambia

as Counter-Respondent II

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 26 October 2018, the Congolese player Idris Mbombo Ilunga (hereinafter: the Claimant/Counter-Respondent I or the player) and the Sudanese club Al-Hilal Khartoum (hereinafter: the Respondent-Counter-Claimant or Al-Hilal) signed an employment contract, valid as from 26 October 2018 until 31 December 2020.

2. In the aforementioned contract, the parties agreed upon the following financial terms:

“THE OBLIGATIONS OF THE FIRST PARTY (THE CLUB)

1. Throughout the period of validity of contract, the First Party will pay to the second Party the following remuneration:

i. For the period 26/10/2018-31/12/2019 a total contractual remuneration of USD 160,000.00 (one hundred sixty thousand American dollars) net payable as below:

a) USD 40,000.00 net on the moment of signing this contract;

b) USD 40,000.00 net on 01.04.2019

c) monthly salary amounting to USD 8,000.00 net payable for 10 calendar months during the year 2019, i.e. January-May and August-December 2019.

ii. For the period 01/01/2020-31/12/2020, a total contractual remuneration amounting to USD 180,000.00 (one hundred eighty thousand American dollars) net payable as below:

a) USD 80,000.00 to be paid:

i. USD 40,000.00 net on 01/01/2020

ii. USD 40,000.00 net on 01/04/2020

b) Monthly salary amounting to USD 10,000.00 net payable for 10 calendar months, i.e. January-May and August-December 2020.

2. The club pledges to allow the contracted players to participate in their national teams.

3. Provide a car to the player for transportation.

4. Provide air tickets for the player round trip twice a year and his family (wife (1) child) round trip once a the season.

5. The first party shall provide medical care for the player.

6. Provide accommodation for the player.

7. The first party shall pay incentives and bonus (According to the regulations of the club)”.

3. The parties also agreed upon the following terms:

“THE OBLIGATIONS OF THE SECOND PARTY (THE PLAYER)

1. The second party shall pledge to participate in the training programmes, camps and matches in which the first party takes part, inside and outside the country, during the period of contract.

2. The second party shall pledge to adhere to all the internal regulations which are issued by the first party to its players and completely obey all directives and decisions issued by the first party.

3. The second party may no claim any additional money of financial rewards, except those mentioned in this contract-

4. The player shall fully pledge not to player football not participate in any sports activities for other than the club, except by the written approval of the latter.

5. The player shall pledge not to play football nor participate in any sports activities for other than the club, except by the written approval of the latter.

4. The player shall pledge to attend the training and the matches whenever he is asked to do so, and shall pledge to offer the best he can when chosen to participate in matches

7. The player pledges to keep a high standard of physical fitness and to refrain from doing any act or participate in any activity or training, without the knowledge or approval of the club.

8. In case of the deterioration of level of the player, in accordance with a report by the technical team, the club may deduct (20%) and not more than (50%) of monthly entitlements, for a period of not more than three months. lfthe player did not develop his level, the matter shall be raised to the board of directors, to take what it may deem suitable of decisions.

9. In case of the absence of the player without a written approval of the club, the entitlements of the days of absence shall be deducted from his monthly entitlements, with a maximum of (15) day per month. If his absence continues, the matter shall be raised to the board of directors, to take what it may deem suitable of decisions.

10. Whenever the player gets a yellow, red card or a suspension for a period of time, because of bad behaviour, the club may take the following decisions:

A) The deduction of (5%) of his monthly entitlements for each yellow card.

B) The deduction of (10%) of his monthly entitlements for each red card.

C) When the player suspended for a time period, because of bad behaviour, the club may deduct (25%) of his monthly entitlements during all the period of suspension.

11. In case the player committed an offence against the concluded contract, disobeyed the internal systems of the club or the instructions of those responsible for the club, delayed himself from camps or their times or the training sessions, non-follow-up of medical treatment nor cooperation with his fellow-players without an acceptable excuse, the second party shall accept the deduction from his financial entitlements (the advance payment of the conclude contract or the monthly pay); as follows:

A) The deduction of (10%) from the monthly salary, in case of nonattending a formal training without a prior permit, or for unreasonable causes.

B) The deduction of (25%) of monthly salary in case of non-participation in any formal matches, without a prior permission.

C) The deduction of (20%) of monthly salary in case of his non-followup medical treatment and non-adhering to the medical instruction.

D) The deduction of (30%) of the monthly salary in the following cases:

1. Negligence or non-caring during training or the formal matches.

2. Deliberate bad behaviour inside and outside the playground.

3. Pretending that he is injured.

E) In case of repeating any of the offences mentioned above, the first party may inflict the suitable punishment or terminate the contract”.

4. On 1 July 2019, the play lodged a claim at FIFA against Al-Hilal for breach of contract, requesting the following:

- USD 40,000 as outstanding remuneration plus interest of 5% p.a. as from 1 April 2019;

- USD 220,000 as compensation for breach of contract plus 5% interest p.a. as from 28 June 2019;

- “disciplinary sanctions against Al-Hilal”.

5. In this claim, the player maintained that until March 2019, Al-Hilal complied with its contractual obligations. However, Al-Hilal omitted to pay his salaries of March 2019 and April 2019, i.e. USD 16,000 (USD 8,000 x 2), as well as the payment of the lump sum of USD 40,000 due on 1 April 2019.

6. By correspondence dated 9 May 2019, the player requested Al-Hilal to proceed with the payment of the amount of USD 56,000, setting a time limit of 15 days in order for the club to remedy the default.

7. The player acknowledged the payment of his salaries of March 2019, April 2019 and May 2019, nonetheless, the payment of USD 40,000 remained, according to the player, outstanding.

8. Consequently, on 27 June 2019, the player unilaterally terminated the contract. The player maintains that “with an outstanding balance of obligations corresponding to 5 (five) monthly salaries”, he terminated the contract with just cause. The player, in this context, refers to the principle of pacta sunt servanda and articles 13, 14bis and 14 of the Regulations. Next to the outstanding amount of USD 40,000, the Claimant requested compensation, corresponding to the residual value of the contract, i.e. USD 220,000, broken down as follows.

9. In its reply to the claim, Al-Hilal held that on 6 June 2019, it granted the Claimant a 10-day leave to visit his family in Congo, as per an alleged statement of the player. As a consequence, Al-Hilal explained that his salary for “June 2019” and the instalment for April 2019, payable on 15 June 2019 “in line with the club’s established payment system”, could only be paid in Sudan, due to local financial restrictions. In this respect, Al-Hilal enclosed a “financial restriction certificate” of the Central Bank of Sudan. Therefore, in Al-Hilal’s view, it had no outstanding debts as it could not pay the amounts to the player.

10. Moreover, Al-Hilal sustained that the player did not come back after said break, that it had to open disciplinary proceedings for non-allowed absence and, finally that it found out that the player signed an employment contract with the Zambian club Nkana FC.

11. As a consequence, Al-Hilal deemed that the player terminated the contract without just cause, and therefore, it lodged a counterclaim against him and his new club for breach of contract explaining that both were severally and jointly liable and requested the amount of USD 220,000 as compensation for breach of contract, plus 5 % interest p.a. as from 27 June 2019.

12. In his reply to Al-Hilal’s counterclaim, the player firstly held that despite Al-Hilal having allegedly been incapable of paying him the instalment of USD 40,000 due to local financial restrictions, it could however manage to pay him the monthly salaries of March, April and May 2019, out of which April and March 2019 were due “after the date when such contract instalment should had been executed”.

13. Moreover, the player referred to his alleged statement regarding his absence and points out that said document was drafted by Al-Hilal itself, containing its letterhead and referring to “Idris Mpompo”, which is not his name. The player further points out that Al-Hilal failed to provide evidence that “the services of the Claimant were required at this period of time”. Therefore, in his opinion, Al-Hilal failed to prove that he breached the contract and, additionally, that it had launched any kind of disciplinary proceedings in this respect.

14. In continuation, the player explained that, contrary to what Al-Hilal states, there was no reasonable explanation justifying the non-payment of the USD 40,000 due on 1 April 2019, which, in his opinion, did constitute a just cause to terminate the contract as described in his initial claim.

15. Finally, the player stated that he joined his new club, Nkana FC, on 4 July 2019, after termination, for a lower salary that the one he was earning with Al-Hilal, which would prove that no inducement would have occurred. In addition to this, the player explained that, having kept good relations from a past contractual relationship with Nkana FC, once the termination occurred, he informed such club of his availability, to which it responded positively.

16. For its part, Nkana FC corroborated the player’s allegations as to the steps leading to the conclusion of their employment relationship and explained that the deliverance of the relevant ITC occurred in a good faith procedure. In addition, Nkana FC rejected Al-Hilal’s allegations of inducement and referred to the player’s passport, the provisional ITC as issued by FIFA, the player’s unilateral termination and their contract in order to demonstrate its arguments.

17. The player signed an employment contract with Nkana FC on 4 July 2019, valid as from 1 July 2019 until 30 June 2021, for a total value of USD 204,000.

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 1 July 2019 and decided on 8 May 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 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 Congolese player, a Sudanese club and a Zambian 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 2 of the Regulations on the Status and Transfer of Players (2020), and considering that the present claim was lodged on 1 July 2019, the June 2019 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. The members of the Chamber started by acknowledging the facts of the case, as well as the documentation contained in the file. 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.

5. In this respect, the Chamber first acknowledged that the player and Al-Hilal signed an employment contract valid as from 26 October 2018 until 31 December 2020, for the remuneration detailed in point I.2 above.

6. In addition, the Chamber noted that on the one hand the player claims to have terminated the contract with just cause on 27 June 2019, after having put the club in default of payment of the total amount of USD 56,000, corresponding to USD 40,000 due on 1 April 2019 plus outstanding salaries for March 2019 and April 2019 (USD 8,000 x 2). The player claims that after the default notice and up until today the amount of USD 40,000 remains outstanding. The Chamber noted on the other hand that Al-Hilal deems that the termination was made without just cause, as the non-payment of the USD 40,000 was a consequence of the international financial restriction upon Sudan and claims that the player was absent without authorisation. Finally, Al-Hilal deems that the player terminated the contract without just cause and lodges a counterclaim against him and his new club Nkana FC.

7. In view of the foregoing and of the diverging opinions of the parties, the Dispute Resolution Chamber was of the opinion that the issue at stake considering the argumentation of both parties, was to determine whether the employment contract had been unilaterally terminated by the player with or without just cause on 27 June 2019, and which party was responsible for the early termination of the contractual relationship in question.

8. The DRC also underlined that, subsequently, if it were found that the employment contract was breached by one of the parties without just cause, it would be necessary to determine the consequence for the party that caused the unjust breach of the relevant employment contract.

9. At this point, the DRC deemed it necessary to recall the content of art. 12 par.3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

10. Bearing in mind the foregoing, the Chamber noted that Al-Hilal bore the burden of proving that it indeed paid the amounts due to the player in accordance with the employment contract or that it had a valid reason not to have done so. In this respect, the DRC noted that while Al-Hilal claims not to have been able to pay the player the outstanding amount of USD 40,000, it could – as acknowledged by the player – pay him the salaries for March 2019 and April 2019. Thus, this argument of Al-Hilal cannot be upheld.

11. As to the allegation that the player had been absent from the club without authorisation, for which Al-Hilal provided an alleged statement of the player, rejected by the latter as it was issued by the club and contained the incorrect name, the Chamber deemed that the club was also not able to discharge itself of the burden of proof of any unjust breach on the side of the player, which could possibly justify the non-payment of the amount of USD 40,000.

12. In addition, the Chamber noted that the player had put the club in default of payment on 9 May 2019, granting it 15 days to remedy the default, and finally unilaterally terminating the on 27 June 2019, due to the incomplete payment made by the club after the default.

13. At this point, the Chamber deemed it appropriate to remind the parties of the wording of art. 14bis par. 1 of the Regulations, according to which: “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)”. (emphasis added)

14. Bearing in mind the foregoing, the DRC noted a) that the player acted in accordance with art. 14bis of the Regulations, b) that after the default notice the club only partially paid the outstanding remuneration claimed and c) that the amount which remained outstanding corresponded to 5 monthly salaries. Thus, the DRC concluded that the player had a just cause to terminate the contract.

15. As a result, Al-Hilal is to be held liable for the early termination of the employment contact with just cause by the player.

16. In continuation, the Chamber focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the player is entitled to receive from Al-Hilal an amount of money as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant employment contract.

17. In this regard, the DRC first addressed the issue of unpaid remuneration at the moment when the contract was terminated by the player and decided that, in accordance with the general legal principle of pacta sunt servanda, Al-Hilal is liable to pay to the player outstanding remuneration in the total amount of USD 40,000.

18. In addition, taking into consideration the player’s claim, the DRC decided to award him interest at the rate of 5% p.a. on the respective amount due as of the day following the day on which said payment fell due, i.e. as from 2 April 2019, until the date of effective payment.

19. In continuation, having established that Al-Hilal is to be held liable for the early termination of the employment contract with just cause by the player, the DRC focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC decided that the player is entitled to receive an amount of money from Al-Hilal as compensation for the termination of the contract with just cause in addition to any outstanding payments on the basis of the relevant employment contract.

20. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the player by Al-Hilal in the case at stake. In doing so, the members of the Chamber 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.

21. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

22. As a consequence, the members of the Chamber determined that the amount of compensation payable by Al-Hilal to the player 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.

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

24. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the calculation of the monies payable to him under the terms of the employment contract from its date of termination with just cause by the Claimant, i.e. 27 June 2019 until 31 December 2020 and concluded that the player would have received in total USD 220,000 as remuneration had the contract been executed until its expiry date. Consequently, the Chamber concluded that the amount of USD 220,000 serves as the basis for the determination of the amount of compensation for breach of contract.

25. In continuation, the Chamber verified as to 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 enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

26. The Chamber noted that the player signed a new employment contract with Nkana FC, valid as from 1 July 2019, according to which the player would earn USD 168,000 during the overlapping durations of the new and the old contracts. Therefore, the mitigated compensation amounts to USD 52,000.

27. Subsequently, the Chamber referred to art. 17 par. 1 point ii. and established that, since the termination was due to overdue payables, the player should also be entitled to additional compensation in the amount of 3 to 6 monthly salaries, and decided to award him the amount of USD 40,000.

28. Thus, the total amount of compensation payable to the player amounts to USD 92,000.

29. In addition, taking into account the player’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC decided that Al-Hilal must pay to the player interest of 5% p.a. on the amount of compensation as of the date of the claim, i.e. 1 July 2019 until the date of effective payment.

30. Furthermore, taking into account the consideration under number II./3. above, the DRC 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 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 decided that, in the event that the Respondent does not pay the amounts due to the player within 45 days as from the moment in which the player, following the notification of the present decision, communicates the relevant bank details to Al-Hilal, 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. Finally, the DRC 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.

34. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that the player’s claim is partially accepted and Al-Hilal’s counterclaim is rejected.

*****

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant/Counter-Respondent I, Idris Mbombo Ilunga, is partially accepted.

2. The Respondent/Counter-Claimant, Al-Hilal Khartoum SC, has to pay to the Claimant/Counter-Respondent I outstanding remuneration in the amount of USD 40,000, plus 5% interest p.a. as from 2 April 2019 until the date of effective payment.

3. The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent I compensation for breach of contract in the amount of USD 92,000, plus 5% interest p.a. as from 1 July 2019 until the date of effective payment.

4. Any further claim lodged by the Claimant/Counter-Respondent I is rejected.

5. The counterclaim of the Respondent/Counter-Claimant is rejected.

6. The Claimant/Counter-Respondent I is directed to inform the Respondent/Counter-Claimant, 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/Counter-Claimant must pay the amounts plus interest mentioned under points 2. and 3. above.

7. The Respondent/Counter-Claimant shall provide evidence of payment of the due amounts plus interest 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 amounts plus interest in accordance with points 2. and 3. above are not paid by the Respondent/Counter-Claimant within 45 days as from the notification by the Claimant/Counter-Respondent I of the relevant bank details to the Respondent/Counter-Claimant, the Respondent/Counter-Claimant 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 8. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

10. In the event that the amounts plus interest 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 appeal procedure:

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

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 / www.tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer