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 25 March 2021

Decision of the

Dispute Resolution Chamber

passed on 25 March 2021

regarding an employment-related dispute concerning the player Gregory Diranth Gomis

COMPOSITION:

Omar Ongaro (Italy), Deputy Chairman

Daan de Jong (the Netherlands), member

Alexandra Gomez Bruinewoud (Uruguay & the Netherlands), member

CLAIMANT:

Gregory Diranth Gomis, France

Represented by Salvatore Civale

RESPONDENT:

Al Sailiya SC, Qatar

Represented by Nilo Effori

I. FACTS OF THE CASE

1. Following the execution of two previous contracts, the French player, Gregory Diranth Gomis (hereinafter: the player or the Claimant) and the Qatari club Al Sailiya SC (hereinafter: the club or the Respondent) signed on 1 July 2019 a third employment contract (hereinafter: the contract), valid as from the same date until 30 June 2024.

2. Schedule 1 of the contract provided as follows:

“1. The Contract has a total value of QR 5,670,000 (in words: Five million six hundred and seventy thousand riyals).

2. Concerning the season 2019/2020 the Player shall receive from the Club the total amounts as follows:

a. Signing-on fee (if applicable): QR 654,000 to be paid in 12 monthly instalments of each QR 54,600 at the end of each Gregorian month for the period from 01/07/2019. Until 30/06/2020. The Player agrees and accepts that as per QFA Regulations no advance payment of a signing-on fee is possible.

b. Monthly salary: QR 40,000 to be paid at the end of each Gregorian month for the period from 01/07/2019 until 30/06/2020.

3. Concerning the season 2020/2021 (if applicable) the Player shall receive from the Club the total amounts as follows:

a. Signing-on fee (if applicable): QR 654,000 to be paid in 12 monthly instalments of each QR 54,600 at the end of each Gregorian month for the period from 01/07/2020 until 30/06/2021. The Player agrees and accepts that as per QFA Regulations no advance payment of a signing-on fee is possible.

b. Monthly salary: QR 40,000 to be paid at the end of each Gregorian month for the period from 01/07/2020 until 30/06/2021.

4. Concerning the season 2021/2022 (if applicable) the Player shall receive from the Club the total amounts as follows:

a. Signing-on fee (if applicable): QR 654,000 to be paid in 12 monthly instalments of each QR 54,600 at the end of each Gregorian month for the period from 01/07/2021 until 30/06/2022. The Player agrees and accepts that as per QFA Regulations no advance payment of a signing-on fee is possible.

b. Monthly salary: QR 40,000 to be paid at the end of each Gregorian month for the period from 01/07/2021 until 30/06/2022.

5. Concerning the season 2022/2023 (if applicable) the Player shall receive from the Club the total amounts as follows:

a. Signing-on fee (if applicable): QR 654,000 to be paid in 12 monthly instalments of each QR 54,600 at the end of each Gregorian month for the period from 01/07/2022 until 30/06/2023. The Player agrees and accepts that as per QFA Regulations no advance payment of a signing-on fee is possible.

b. Monthly salary: QR 40,000 to be paid at the end of each Gregorian month for the period from 01/07/2022 until 30/06/2023.

6. Concerning the season 2023/2024 (if applicable) the Player shall receive from the Club the total amounts as follows:

a. Signing-on fee (if applicable): QR 654,000 to be paid in 12 monthly instalments of each QR 54,600 at the end of each Gregorian month for the period from 01/07/2023 until 30/06/2024. The Player agrees and accepts that as per QFA Regulations no advance payment of a signing-on fee is possible.

b. Monthly salary: QR 40,000 to be paid at the end of each Gregorian month for the period from 01/07/2023 until 30/06/2024.

7. Bonuses

a. QLS Championship;

b. Qatar Cup Championship;

c. H.H The Amir’s Cup; d. AFC Champions League Championship; The aforesaid bonuses, if applicable, are payable at the end of each sporting season, i.e. 30 June of each year of the season when the event giving rise to the bonuses occurred”.

3. Clause 9 of the contract provided as follows: “The Player’s income refers to net amounts in the State of Qatar. Any taxes, social costs, contributions or any other amounts the Player may need to pay in the country of his residence or any other country are to be borne by the Player and the Club insofar shall not be obliged to pay any additional amounts to the player as those agreed upon in this Contract”.

4. On 29 January 2019, the club undertook via a letter to the player to pay him QR 2,000,000 as overdue payables.

5. On 15 May 2019, the parties executed a settlement agreement by means of which the club undertook to pay QR 2,000,000 by 30 June 2020 (hereinafter: the settlement agreement).

6. On 22 December 2020, the player put the club in default QR 2,283,500, broken down as follows, and granting a deadline of 15 days for the club to cure the breach:

a. Salaries and sign-on fees from September to November 2020;

b. QR 2,000,000 as per the settlement agreement;

7. On 11 January 2021, the player terminated the contract in writing.

8. By the time this decision was passed, the player had not found any new employment.

9. On 26 January 2021, the Claimant filed the claim at hand before FIFA. He deems that he terminated the contract with just cause and seeks payment of outstanding remuneration and compensation for breach of contract as follows:

“(a) Order the Respondent to pay the Claimant the overdues in the amount of 2,378,000 QR NET calculated as follows:

- Overdue concerning the season 2019/2020 in the amount of QR 2,000,000 which was postponed to 30 June 2020;

- Salary of September 2020 of QR 40,000 plus the sign on fee installment of September 2020 of 54,500 QR for a total due for the month of September of QR 94,500;

- Salary of October 2020 of QR 40,000 plus the sign on fee installment of September 2020 of 54,500 QR for a total due for the month of October of QR 94,500;

- Salary of November 2020 of QR 40,000 plus the sign on fee installment of September 2020 of 54,500 QR for a total due for the month of November of QR 94,500;

- Salary of December 2020 of QR 40,000 plus the sign on fee installment of September 2020 of 54,500 QR for a total due for the month of December of QR 94,500.

(b)Order the Respondent to pay the Claimant the compensation for breach of contract in the amount of QR 3,969,000 NET equals to the remaining value of the contract (42 months) x the monthly due of QR 94,500;

(c) Order the Club to pay an interest of 5% on each of the above amounts due to the Player, calculated as follows:

Overdues

- starting from 30 June 2020 as for the amount of QR 2,000,000; - starting from 30 September 2020 as for the amount of QR 94,500;

- starting from 31 October 2020 as for the amount of QR 94,500;

- starting from 30 November 2020 as for the amount of QR 94,500;

- starting from 31 December 2020 as for the amount of QR 94,500;

Compensation

- starting from 11 January 2021 (or 26 January 2021) as for the amount of QR 3,969,000.

(d)Apply the measures and sporting sanctions established by the FIFA Regulations on Status and Transfer of Players, namely the ban of 2 transfer windows.

(e) Apply any other measures it considers necessary in decision of the case at stake”.

10. The Respondent did not reply to the claim.

II.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

a. Competence and applicable legal framework

11. 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 presented to FIFA on 26 January 2021 and submitted for decision on 25 March 2021. Taking into account the wording of art. 21 of the January 2021 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.

12. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and b) of the Regulations on the Status and Transfer of Players (edition February 2021), 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 French player and a Qatari club.

13. Subsequently, 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 Player (edition February 2021), and considering that the present claim was lodged on 26 January 2021, the January 2021 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

14. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, the DRC stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties.

15. In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c. Merits of the dispute

16. The competence of the DRC and the applicable regulations having been established, the DRC entered into the merits of the dispute. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the 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.

i. Main legal discussion and considerations

17. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that the player filed the claim at hand seeking payment of outstanding remuneration and compensation for breach of contract.

18. Subsequently, the Chamber took into account that 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 considered that the Respondent renounced its right to defence and thus accepted the allegations of the Claimant.

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

20. To this end, the DRC noted that the player, who filed evidence of the contract concluded with the club, put the latter in default on 22 December 2020, requesting payment of the following, evidence of which was also made available to the Chamber:

a. Salaries and sign-on fees from September to November 2020;

b. QR 2,000,000 as per the settlement agreement.

21. The Chamber additionally noted that the player granted a deadline of 15 days for the club to cure the breach, to no avail, leading thereafter to the termination of the contract at the player’s initiative on 11 January 2021.

22. Consequently, the Chamber found that the player duly met the criteria found in article 14bis of the Regulations, especially because at least two monthly salaries had been outstanding. It followed that the player had just cause to terminate the contract and the player shall endure the consequences that follow.

ii. Consequences

23. Having stated the above, the members of the Chamber turned their attention to the question of the consequences of such unjustified breach of contract committed by the Respondent.

24. The Chamber observed that the outstanding remuneration at the time of termination comprised of QAR 378,000, equivalent to the salaries between September 2020 until December 2020 à QAR 94,500 each. The Chamber furthermore noted that QAR 2,000,000 were due in accordance with the settlement agreement.

25. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the club is liable to pay to the player the amounts which were outstanding under the contract at the moment of the termination, i.e. QAR 2,378,000.

26. In addition, taking into consideration the player’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided to award the player interest at the rate of 5% p.a. on the outstanding amounts as from one day after the their due dates until the date of effective payment.

27. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the player by the club in the case at stake. In doing so, 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.

28. 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.

29. 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 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.

30. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the contract until its expiration date. Consequently, the Chamber concluded that the amount of QAR 3,969,000 serves as the basis for the determination of the amount of compensation for breach of contract. Such amount is broken down as follows: (a) QAR 567,000 corresponding to six months for the remainder of the season 2020/2021; (b) QAR 1,134,000 for the season 2021/2022; (c) QAR 1,134,000 for the season 2022/2023; and (d) QAR 1,134,000 for the season 2023/2024.

31. 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 as well as art. 17 par. 1 lit. ii) of the Regulations, 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.

32. In fact, the player could not find new employment; hence, there is no mitigation to be considered in line with article 17 of the Regulations.

33. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the club must pay the amount of QAR 3,969,000 as compensation for breach of contract, which was to be considered a reasonable and justified amount in the present matter.

34. Lastly, taking into consideration the player’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided to award the player interest on said compensation at the rate of 5% p.a. as of the date of claim until the date of effective payment.

iii. Compliance with monetary decisions

35. Finally, taking into account the applicable Regulations, the Chamber referred to par. 1 lit. 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.

36. In this regard, the DRC highlighted 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. The overall maximum duration of the registration ban shall be of up to three entire and consecutive registration periods.

37. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the full amount due (including all applicable interest) to the Claimant within 45 days of notification of the decision, failing which, at the request of the Claimant, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become immediately effective on the Respondent in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.

38. The Respondent shall make full payment (including all applicable interest) to the bank account provided by the Claimant in the Bank Account Registration Form, which is attached to the present decision.

39. 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. 8 of the Regulations.

d. Costs

40. The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

41. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

42. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties.

III.

III. DECISION DECISION OF THE OF THE DISPUTE RESOLUTION CDISPUTE RESOLUTION CHAMBERHAMBER

1. The claim of the Claimant, Gregory Diranth Gomis, is partially accepted.

2. The Respondent, Al Sailiya SC, has to pay to the Claimant the following amounts:

a. QAR 2,000,000 net as outstanding remuneration plus 5% interest p.a. as from 1 July 2020 until the date of effective payment;

b. QAR 94,500 net as outstanding remuneration plus 5% interest p.a. as from 1 October 2020 until the date of effective payment;

c. QAR 94,500 net as outstanding remuneration plus 5% interest p.a. as from 1 November 2020 until the date of effective payment;

d. QAR 94,500 net as outstanding remuneration plus 5% interest p.a. as from 1 December 2020 until the date of effective payment;

e. QAR 94,500 net as outstanding remuneration plus 5% interest p.a. as from 1 January 2021 until the date of effective payment;

f. QAR 3,969,000 net as compensation for breach of contract without just cause plus 5% interest p.a. as from 26 January 2021 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. Full payment (including all applicable interest) shall be made to the bank account set out in the enclosed Bank Account Registration Form.

5. Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full payment (including all applicable interest) is not paid within 45 days of notification of this decision, the following consequences shall apply:

 1.

The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid. The maximum duration of three entire and consecutive registration periods. 2.

The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in the event that full payment (including all applicable interest) is still not paid by the end of the of the three entire and consecutive registration periods.

6. The consequences shall only be enforced at the request of the Claimant in accordance with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and Transfer of Players.

7. This decision is rendered without costs.

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).

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