F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 15 July 2020

Decision of the

DRC Judge

passed via videoconference, on 15 July 2020,

regarding an employment-related dispute concerning the player Shadrach Kwesi Eghan

BY:

Johan van Gaalen (South Africa), DRC Judge

CLAIMANT:

Shadrach Kwesi Eghan, Ghana

represented by Mr. Nasr El-din Azzam

RESPONDENT:

Al Zawra Sports Club, Iraq

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I. FACTS OF THE CASE

1. On 26 January 2019, the Ghanaian / Dutch player Shadrach Kwesi Eghan (hereinafter: the Claimant or the player) and the Iraqi club, Al Zawra (hereinafter: the Respondent or the club) signed two documents, an employment contract (hereinafter: contract) valid from 26 January 2019 until 30 July 2019.

2. According to the contract, the Respondent undertook to pay the Claimant a monthly salary of USD 11,900 “at the end of every month”, whereby the total value of the contract is defined as USD 70,000.

3. Furthermore, according to the contract, the Respondent undertook to “secure decent housing” for the Claimant.

4. According to information contained in the Transfer Matching System (TMS), the player was registered with the Respondent on 29 January 2019.

5. According the documentation on file, the Claimant was able to enter Iraq and the Respondent announced the signing of the contract on its official media accounts.

6. On 4 March 2020, the Claimant lodged a claim against the Respondent in front of FIFA, requesting the following monies:

- USD 70,000 corresponding to the total value of the contract;

- USD 1,500 corresponding to three flight tickets;

- USD 70,400 as additional compensation, corresponding to 6 monthly salaries;

- USD 10,000 as contribution to the Claimant’s legal fees.

7. In his claim, the player argued that although he participated in the training sessions of the club, he never received any salary. Moreover, according to the player, he “subjected to abusive conduct.”

8. According to the player, on an unspecified date, the Respondent contacted the alleged player’s agent and concluded a termination agreement, which stated: “there are no financial rights due to the player by the club”.

9. The Claimant contested the validity of said termination agreement, since “it was not signed by him” and “it indicated that the termination has been negotiated and signed by his agent.”

10. In spite of being requested to do so, the Respondent failed to submit a reply to the player’s claim.

11. The player informed the FIFA administration that he remained unemployed until 30 July 2019.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

1. First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter also referred to as DRC judge) analysed whether he was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 4 March 2020 and submitted for decision on 15 July 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 DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, the DRC judge is competent to deal with the matter at stake, which concerns an employment–related dispute with an international dimension.

3. In continuation, the DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, the DRC judge confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (June 2020 edition), and considering that the claim was lodged on 4 March 2020, the March 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 DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC judge 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. Having said that, the DRC judge acknowledged that on 26 January 2019, the Claimant and the Respondent signed an employment agreement valid as from 26 January 2019 until 30 July 2019. Based on said contract, the Respondent undertook to pay to the Claimant, inter alia, a monthly salary of USD 11,900, to be paid at the end of every month, i.e. the total amount of USD 70,000 as well as “secure decent housing”.

6. What is more, the DRC judge noted that the Claimant explained that – after entering Iraq and having participated in the Respondent’s training sessions – after three weeks, on or around 16 February 2019, he received a mutual termination agreement, signed by the Respondent and his agent. BY means of this settlement agreement, the Claimant would have agreed with the termination of his contract and he would have waived his financial rights as per the contract.

7. The Claimant maintained in this respect that he had never signed said termination agreement, nor that he gave permission to his agent to sign said document, and further explained that he was threatened by the Respondent, as well as by armed soldiers.

8. Moreover, the Claimant explains that for the abovementioned reasons, the Respondent was apparently not interested in his services anymore, and he wished to receive compensation for breach of contract.

9. The Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. In this way, the DRC judge considered that the Respondent renounced its right of defence.

10. Furthermore, as a consequence of the aforementioned consideration, the DRC judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules it shall take a decision upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant.

11. In view of the foregoing, The DRC judge highlighted that the underlying issue in this dispute was to determine as to when the contract was terminated and whether said termination was made with or without just cause by one of the parties. The DRC judge also underlined that, subsequently, if he would found that the contract was terminated without just cause, it would be necessary to determine the consequences for the party that was responsible for the early termination of the contractual relation.

12. The DRC judge, first of all, wished to highlight that from the information on file, as well as the absence of a reply of the Respondent, the chronology of the matter at hand is not unambiguously clear. However, according to the Claimant, the collaboration between the parties came to an end three weeks after the starting date of the contract, i.e. on 16 February 2020, when a termination agreement – signed by the Respondent and the Claimant’s agent - was handed over to the Claimant and he was allegedly threatened by the Respondent.

13. Turning to the content of the file, the DRC judge noted that the Claimant explicitly denied that he singed said termination agreement, as the document only bears the signatures of the Respondent and the agent of the Claimant. What is more, the DRC judge also noted that no power of attorney was on file, on the basis of which the agent of the Claimant would have been entitled to conclude said termination agreement on behalf of the Claimant. Therefore, the DRC judge deemed that, given the explicit denial of the Claimant as well as the lack of evidence that the termination agreement was signed on behalf or with the Claimant being aware of it, the effects of said termination agreement cannot be upheld against the Claimant.

14. Furthermore, as a consequence of the aforementioned considerations and taking into account the documentation presented by the parties to the dispute, the DRC judge established that the Respondent had effectively terminated the contract between the parties on 16 February 2019, as it was allegedly no longer interested in the services of the Claimant.

15. Furthermore, the DRC judge deemed it vital to outline that it remained uncontested that the Respondent had not fulfilled its financial obligations set forth in the employment contract signed between the parties and that it failed to pay to the Claimant any of the agreed salaries.

16. On account of all the abovementioned considerations, the DRC judge decided that the contractual relationship between the parties had finished on 16 February 2019, that is, three weeks after the start of the contract. In view of the uncontested allegations of the Claimant, the DRC judge decided that the Respondent is to be held liable for the early termination of the employment contact without just cause.

17. Bearing in mind the previous considerations, the DRC judge went on to deal with the consequences of the early termination of the employment contract without just cause by the Respondent.

18. First of all, the DRC judge concurred that the Respondent must fulfil its obligations as per employment contract up until the date of termination of the contract in accordance with the general legal principle of “pacta sunt servanda”.

19. However, taking into account that the Claimant claims to have only stayed for 3 weeks at the Respondent’s club, i.e. until 16 February 2019 and that by the time the collaboration between the parties allegedly stopped, no salary payments had fallen due yet, the DRC judge decided to not award any outstanding remuneration to the Claimant.

20. In continuation, the DRC judge decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding remuneration on the basis of the relevant employment contract.

21. In this context, the DRC judge outlined that, in accordance with said provision, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

22. In application of the relevant provision, the DRC judge held that 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 DRC judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

23. Subsequently, and in order to evaluate the compensation to be paid by the Respondent the DRC judge took into account the remuneration due to the Claimant in accordance with the employment contract as well as the time remaining on the same contract, along with the professional situation of the Claimant after the early termination occurred. In this respect, the DRC judge pointed out that at the time of the termination of the employment contract, i.e. on 16 February 2019, the contract would run for another 5.5 months, that is, until 30 July 2019 and that no salary had fallen due until

16 February 2019. Consequently, taking into account the financial terms of the contract, the DRC judge concluded that the remaining value of the contract as from its early termination by the Respondent until the regular expiry of the contract amounts to USD 70,000 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract.

24. In continuation, the DRC judge remarked that following the early termination of the employment contract at the basis of the present dispute, the Claimant was not able to find new employment. As a result, no further amounts will be deducted from the compensation the Claimant would be entitled to.

25. In view of all of the above, the DRC judge decided that the Respondent must pay the amount of USD 70,000 to the Claimant as compensation for breach of contract without just case, which is considered by the DRC judge to be a reasonable and justified amount as compensation.

26. In addition, taking into account the Claimant’s claim and the longstanding jurisprudence of the Chamber in this respect, it was decided to award the Claimant interest of 5% p.a. as of 4 March 2020 on the compensation payable.

27. The request for additional compensation based on the specificity of sport was rejected, since the DRC judge did not find any particular reason for such adjustment. Furthermore, reference was also made to art. 17 par 1. lit ii of the Regulations, which provides for additional compensation only in case the Claimant was able to mitigate his damage and the early termination of the contract being due to overdue payables. None of these cumulative conditions are met in the matter at hand.

28. What is more, with respect to the claimed flight tickets, the DRC judge decided not to upheld this part of the Claimant’s claim, as the Claimant failed to submit any documentary evidence that he effectively incurred said costs.

29. Additionally, as regards the claimed legal expenses, the DRC judge referred to art. 18 par. 4 of the Procedural Rules as well as to its long-standing and well-established jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber. Consequently, the DRC judge decided to reject the Claimant’s request relating to legal expenses.

30. In conclusion, the DRC decided that the Respondent is liable to pay the total amount of USD 70,000 to the Claimant as compensation for breach of contract without just cause.

31. The DRC judge concluded his deliberations in the present matter stipulating that any further claim lodged by the Claimant is rejected. In conclusion, the Claimant’s claim is partially accepted.

32. Furthermore, taking into account the consideration under number II./3. above, the DRC judge referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

33. In this regard, the DRC judge pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods.

34. 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.

35. Finally, the DRC judge 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 DRC JUDGE

1. The claim of the Claimant, Shadrach Kwesi Eghan, is partially accepted.

2. The Respondent, Al Zawra Sports Club, has to pay to the Claimant, the following amount:

- USD 70,000 as compensation for breach of contract plus 5% interest p.a. as from 4 March 2020 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.

5. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount due, plus interest as established 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 following consequences shall arise:

 1.

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. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players).

2.

In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED 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) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, 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 Procedural Rules).

CONTACT INFORMATION:

Fédération Internationale de Football Association

FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777