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 3 July 2020
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 3 July 2020,
regarding an employment-related dispute concerning the player Francis FORKEY DOE
COMPOSITION:
Geoff Thompson (England), Chairman Michelle Colucci (Italy), member Mohamed Muzammil (Singapore), member
CLAIMANT:
FRANCIS FORKEY DOE, Liberia
Represented by Mr. Juan de Dios Crespo Perez
RESPONDENT:
PAHANG FA, Malaysia
I. FACTS
1. On 7 February 2018, the Liberian player Francis Forkey Doe (hereinafter: the player or Claimant) and the Malaysian club Pahang FA (hereinafter: the club or Respondent) signed an employment agreement, valid between 1 January 2018 and 31 December 2018, as well as a document referred to as “Additional terms and conditions”.
2. Based on the foregoing documentation, the player was entitled to a monthly salary of USD 18,000 net, payable on the 7th day if the following month.
3. Furthermore, the “Additional terms and conditions” hold the following clause: “Both parties hereby agreed that in the event that the player does not and/or unable to perform as expected of a professional import player, the employer shall have the absolute powers and rights to terminate and declare the contract entered into between the employer and the player as null and void subject to the payment of a compensation of ONE (1) and A HALF (½) month’s salary to the player. Upon receipt of the compensatory payment the contract between the employer and the player shall be deemed terminated and of no further effect and neither party shall have any claims whatsoever against the other party”.
4. On 17 March 2018, the player suffered a knee injury and the club, as from that moment, did not fulfil its financial obligations as per the contract to the player anymore.
5. Moreover, according to the club, on 2 April 2018, the player sent termination letter to the club, by means of which he confirmed that he has “no intention to play for the club” and that he withdraws “all my contract and application”. Furthermore, the player confirmed that “any agreement, oral or written with regards to my participation in Pahang FA shall be considered mutually withdrawn and rescinded by both parties” and that he accepts the amount of USD 27,000 as reimbursement for his expenses.
6. On 2 April 2018, the club confirmed to the player that it agreed with his “terms and conditions” laid down in his letter earlier that day.
7. According to the player, on 13 February 2019, he wrote to one of the club’s executives the following message: “Good Morning Dato, sorry for bothering you so early. It’s just that things aren’t too okay. My place in KL the landlord is stressing me for the past due bills. Especially the light he is threatening to switch it off. Please Dato”. The player holds that in reply, one of the employees of the club informed him as follows: “Yes… I told u yesterday. Boss told me he is giving me the money to pass it to u... I m waiting. Today he said Are u in KL”.
8. On 30 July 2020, the player put the club in default for the total amount of USD 180,000, providing the club a 15 days’ deadline to remedy its default, however to no avail.
9. On 7 September 2020, the club informed the player that it deemed that the matter was settled, as the parties apparently on 7 February 2018 had agreed upon the document referred to as “Additional terms and Conditions” and as on 2 April 2018, the player apparently signed a settlement agreement, based on which he would receive an amount of USD 27,000 (i.e. 1.5 monthly salaries), as reimbursement for his expenses.
10. On 7 October 2020, the player lodged a claim against the club, claiming the amount of USD 180,000 as outstanding remuneration, plus 5% interest p.a. as from 7 January 2018.
11. In his claim, the player denies the validity of the signatures appearing on the settlement agreement and the letter dated 2 April 2018, as well as on the payment receipt, and explains that these signatures are forged.
12. Moreover, the player explains that he is of the opinion that the club’s message sent on 13 February 2019 is an acknowledged of the debt, which forms based on art. 135 of the Swiss Code of Obligations a ground for interrupting the statute of limitations of the act. As a result, based on art. 127 of the Swiss Code of Obligations, “the new two-year limitation period begins from the date of the event that interrupted its computation, that is, from the communication on the 13th of February 2019.“ and that therefore, his claim is not time-barred.
13. In its reply to the claim, the club argued that the claim of the player contained ‘factual errors’.
14. According to the club, on 2 April 2018, the player wrote a letter to the club, stating that he did not wanted to play for the club anymore, and accepted the termination of his contract and the payment of an amount of USD 27,000. On the same day, the club confirmed its agreement with said mutual termination and the parties ended their contractual relationship.
15. Further, the club argues that it paid the salaries for February and March 2018 in the amount of USD 18,000 each, as well as the amount of USD 27,000 as agreed in the correspondence dated 2 April 2018 and an amount of USD 9,000 as “ex-gratia” payment, made “out of good will”.
16. Moreover, the club explicitly denies that the signatures on the document dated 2 April 2018 are forged and further explains that it provided the original version of said document to FIFA.
17. Furthermore, according to the club, the matter is furthermore time-barred, as the event giving rise to the dispute was the termination of the contract on 2 April 2018. It explains that the WhatsApp communication made around 13 February 2019 was made by its Vice-president, who wanted to help the player paying for his house rent and bills “out of good faith and humanity”. In view of this, the club argues that it never acknowledged any debt towards the player after the termination on 2 April 2018.
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 5 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 August 2020), the Dispute Resolution Chamber is competent to deal with the matter at stake. The matter concerns an employment-related dispute with an international dimension between a Liberian player and a Malaysian club, and the competence is not disputed by the parties.
3. Notwithstanding the above, the DRC noted that the parties appear to disagree about the answer to the question whether the contract between the parties was validly terminated on 2 April 2018 and if so, under which conditions. The DRC deemed it relevant to turn its attention to the topic in the below paragraphs. Furthermore, given the fact that the contract was potentially terminated on 2 April 2018 and the fact that the Claimant lodged his claim against the Respondent in front of FIFA on 7 October 2020, the members of the DRC considered that they should also examine whether the present claim, or any part of it, is barred by the statute of limitations.
4. As to the question whether or not the parties in the matter at hand validly terminated the contract on 2 April 2018, by signing agreeing upon a mutual termination, the DRC deemed it crucial to analyse the documentation in the file in this respect.
5. In continuation, the DRC recalled that all documentation remitted shall be considered with free discretion and, therefore, focused its attention on the documentation from both the Claimant and the Respondent dated 2 April 2018, taking into account that the Respondent had provided the originals of said correspondence. After a thorough analysis of the aforementioned documents, in particular, comparing the relevant signatures, the DRC had no other option but to conclude that for a layman, and in the contrary of the Claimant’s point of view, the Claimant’s signature on his letter dated 2 April 2018, compared to his signatures on non-contested documentation, seem to be alike.
6. In view of all of the above, and based on the documentation currently at its disposal, the DRC unanimously came to the conclusion that by means of the documentation dated 2 April 2018, the parties has validly terminated their employment relationship in return for the payment of USD 27,000, the payment of which amount was not denied by the parties.
7. In relation to the question whether or not the matter at hand is to be considered barred by the statute of limitations, the members of the Chamber referred to art. 25 par. 5 of the Regulations on the Status and Transfer of Players, which, in completion to the general procedural terms outlined in the Procedural Rules, clearly establishes that the Dispute Resolution Chamber shall not hear any dispute if more than two years have elapsed since the event giving rise to the dispute arose and that the application of this time limit shall be examined ex officio in each individual case.
8. In view of the above, the DRC deemed it fundamental to underline that in order to determine whether the Chamber could hear the present matter, it should, first and foremost, establish which is “the event giving rise to the dispute”, i.e. which is the starting point of the time period of two years as set out under art. 25 par. 5 of the Regulations.
9. The members of the Chamber acknowledged that, according to the documents presented by the Claimant in support of his claim, the parties were bound by an employment contract, which was consequently terminated by the parties on 2 April 2018. The DRC duly noted that the Claimant brought forward that the Respondent, by means of a message sent on 13 February 2019, had acknowledged its debt towards the Claimant and that as a result, the statute of limitations of the act was interrupted, i.e. a new deadline of two years began to run as from said date.
10. In this sense, the Chamber pointed out that – in principle - the termination of the contract on 2 April 2018 must in principle be considered as the event giving rise to the present dispute and that the question should be answered whether a new time line of two years started to run on 13 February 2019, when the Respondent allegedly recognized its debt towards the Claimant.
11. Analysing the WhatsApp message dated 13 February 2019, the Claimant relies on, the Chamber noted that the contents of this message are not unequivocally clear. The Chamber was of the opinion that it cannot be established with certainty what the contents of the message means to point out or what mind of “money” the alleged employee of the Respondent is referring to.
12. Therefore, the members of the Chamber concluded that it cannot be established that the message dated 13 February 2019 interrupted or stopped the statute of limitations and that a new deadline of two years started to run on 13 February 2019.
13. In continuation, and based on the foregoing, the Chamber recalled that the present claim was submitted to FIFA on 7 October 2020 and that the basis for the claim of the Claimant was the termination of the contract on 2 April 2018, an event which took place more than two years prior to the date on which the Claimant lodged his claim in front of FIFA.
14. As a consequence, referring to art. 25 par. 5 of the Regulations on the Status and Transfer of Players, the DRC concluded that the time limit of two years for the Claimant to claim outstanding remuneration had elapsed at the time he lodged his claim in front of FIFA.
15. Therefore, the Chamber decided that the claim of the Claimant is barred by the statute of limitations and, consequently, inadmissible.
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant, Francis Forkey Doe, is inadmissible.
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