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 22 October 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 22 October 2020,

regarding an employment-related dispute concerning the player Sadam SULLEY

COMPOSITION:

Clifford J. Hendel (USA), Deputy Chairman Angela Collins (Australia), member Abu Nayeem Shohag (Bangladesh), member

CLAIMANT:

SADAM SULLEY, Ghana

Represented by Mr. Peter Lukasek

RESPONDENT:

FK SENICA, Slovakia

I. FACTS

1. The parties concluded an employment contract valid as from 17 July 2019 until 31 June 2021.

2. In accordance with annex. 1 of the employment contract, the player was entitled, in the 2019/2020 season, to a gross salary of EUR 7,807 (or EUR 6,000 net), and in the 2020/2021 season, to a gross salary of EUR 8,474 (or EUR 6,000 net).

3. On 27 April 2020, the parties concluded an “Agreement to extend maturity of the commitment (“Agreement on extension”)”, stipulating the following:

“The parties mutually agreed that the obligation of FK Senica, a.s. to 31/12/2019 against the player resulting from the Professional employment contract in the amount of 15.779,58 € NET (…) as follows:

- 4.756,54 € NET do 30/04/2020,

- 11.023,04 € NET do 31/05/2020.

If the club does not pay the player the first instalment of 4.756.54 € by 30 April 2020, this agreement becomes invalid. Contractual parties declare that all mutual claims arising from the Professional employment contract are hereby settled until 31/12/2019 and parties revoke their right to make any further claims against each other.”

4. On 29 June 2020, the player sent a default notice to the club, requesting the payment of the outstanding amount of EUR 41,023.04 within 15 days.

5. On 23 July 2020, the player lodged a claim before FIFA against the club for outstanding remuneration, and requested the payment of the total amount of EUR 41,023 net, as well as 5% interest p.a. as from the respective due dates, detailed as follows:

• 5,023.04 EUR/net/ remaining monthly salary for November 2019 (due on 31 May 2020);

• 6,000 EUR/net/monthly salary for December 2019 (due on 31 May 2020);

• 6,000 EUR/net/monthly salary for January 2020 (due on 29 February 2020);

• 6,000 EUR/net/monthly salary for February 2020 (due on 31 March 2020);

• 6,000 EUR/net/monthly salary for March 2020 (due on 30 April 202);

• 6,000 EUR/net/monthly salary for April 2020 (due on than 31 May 2020);

• 6,000 EUR/net/monthly salary for May 2020 (due on 30 June 2020).

6. The club contested the competence of FIFA on the basis of art. 13 of the relevant contract, which stipulate the following:

“The contractual parties hereby agree to submit any disputes arising from this Contract to Komora SFZ for a decision in accordance with valid rules and regulations of the SFZ.”

7. As to the substance, the club stated the following:

“The club is interested in settling its obligations, but also pointing out to the difficult situation after the adoption of restrictions on the spread of COVID-19, interruption of the league, outflow of sponsors and leaving the club in a catastrophic financial situation by previous owners, we would like to ask FIFA DRC to, in the interest of preserving the existence of the club, which has a century-old history in the territory of the Slovak Republic, enable the respondents to pay the claims that will be considered justified in instalments spread over 6 months from the validity of the decision.”

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 in principle competent to deal with the matter at stake, as the concerns an employment-related dispute with an international dimension between a Ghanaian player and a Slovakian club.

3. However, the Chamber acknowledged that the club contested the competence of FIFA’s Dispute Resolution Chamber to deal with the present case, stating that any dispute arisen between the parties should be submitted to the deciding bodies of the Slovak Football Federation / Slovenský futbalový zväz (SFZ).

4. Taking into account the above, the Chamber emphasised that, in accordance with art. 22 lit. b) of the October 2020 FIFA Regulations, it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the members of the Chamber further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

5. While analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute actually contained a jurisdiction clause.

6. Having said this, the members of the Chamber turned their attention to art. VII par. 3 of the contract, which stipulates that “The contractual parties hereby agree to submit any disputes arising from this Contract to Komora SFZ for a decision in accordance with valid rules and regulations of the SFZ.”

7. The member of the Chamber noted that said clause in principle is clear and makes reference to one specific national dispute resolution chamber in the sense of art. 22 lit. b) of the aforementioned Regulations.

8. However, the member so the Chamber further noted that the club failed to submit any corroborating documentation on the basis of which it could be proven that the deciding bodies of the SFZ meets the requirements of fair and independent proceedings, and meets the principle of equal representation as also laid down in art .22 b of the Regulations.

9. Having established that one of the main criterion for the recognition of the competence of a national decision-making body, i.e. that the members of the Chamber are able to verify whether the national deciding body is meeting the requirements of fair proceedings and follows a due process, is not fulfilled in the present matter, the Chamber deemed unnecessary to examine any further points. As a result, the Chamber concluded that it could not establish to the competence of the national deciding body of the SFZ.

10. In view of the above, the Chamber established that the club’s objection to the competence of FIFA to deal with the present matter had to be rejected and that the DRC is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance.

11. Subsequently, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (August 2020 edition), and considering that the claim was lodged on 5 May 2020, the March 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

12. 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.

13. The members of the Chamber started by acknowledging that, on 17 July 2019, the player and the club had concluded an employment contract valid between 17 July 2019 and 31 June 2021. Moreover, on 27 April 2020, the parties concluded a document referred to as ‘Agreement on extension’, based on which the club committed itself to pay, in two instalments due on 30 April (EUR 4,756.54) and 31 May 2020 (EUR 11,023.04), an amount of EUR 15,779.58 to the player. Said amount consisted of the salaries for October, November and December 2019, which the club could not pay in time.

14. The player further explains that he agreed with the club that in case of not timely payment of the total first instalment of EUR 4,756.54, the agreement on extension would become invalid.

15. According to the player, the club indeed the amount of EUR 4,756.54 on time, but further failed to pay him his monthly remuneration for the months of November and December 2019 (EUR 11,0232.04), as well as the salaries due in the period between January and May 2020 (5 x EUR 6,000 = EUR 30,000), i.e. the total amount of EUR 41,023.

16. In continuation, the Chamber took due note of the arguments put forward by the club, which did not contest the claimed amount by the player, but explained that as result of the COVID_19 pandemic, it was not able to timely pay the requested amount, and requested for an extension.

17. In this context, the members of the Chamber emphasised that they had to determine whether or not reasons submitted by the club are a valid reason for the non-payment of the agreed overdue remuneration and salaries.

18. In this respect, the Chamber wished to refer to the fact that, in light of the worldwide COVID-19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance and recommendations to member associations and their stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and ensure that any response is harmonised in the common interest. Moreover, on 11 June 2020, FIFA issued an additional document, referred to as FIFA COVID-19 FAQ, which provides clarification about the most relevant questions in connection with the regulatory consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.

19. However, the members of the Chamber turned their attention to the outstanding amounts that are claimed by the player and concluded that the club did not make any attempt to unilaterally vary the contract, but simply no longer paid the amounts it owed to the player.

20. Likewise, the members of the Chamber pointed out that the salary payment for the months of November and December 2019, as well as the salaries for January and February 2020 should have been paid already before the suspension of the contract and/or the outbreak of the pandemic. Specifically, the Chamber concluded that the COVID-19 outbreak shall not be used as an opportunity to escape from debts that fell due already at an earlier stage.

21. Bearing in mind the above considerations, the DRC concluded that the club had not provided any valid justification for the non-payment of the amounts that were outstanding at the time he player lodged his claim before FIFA.

22. Taken into consideration all the previous considerations, the members of the Chamber concurred that it could be established that there was an agreement in place between the parties, on the basis of which an amount of EUR 11,023 as salaries for the month of November and December 2019 had to be paid. Furthermore, as per the contract, the player was entitled to his usual salaries for the period between January and May 2020. As a result, the Chamber decided to reject the club’s argumentation.

23. As a consequence, the Chamber decided that the player’s claim should be accepted and decided that the club is liable to pay to the player the amount of EUR 41,023 net, i.e. the outstanding part of the salaries agreed upon between the parties as per the contract and the agreement on extension.

24. In addition, taking into consideration the player’s claim and the Chamber’s constant jurisprudence in this respect, the Chamber decided to award the player interest at the rate of 5% p.a. on the amount of EUR 41,023 net as from the respective due dates as claimed by the player in his claim, until the date of effective payment.

25. 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.

26. 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.

27. Therefore, bearing in mind the above, the DRC decided that, in the event that the club 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 the club, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.

28. 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

1. The claim of the Claimant, Sadam Sulley, is accepted.

2. The Respondent, FK Senica, has to pay to the Claimant, the following amount:

 EUR 41,023 net as outstanding remuneration plus 5% interest p.a. until the effective date of payment as follows:

- on the amount of EUR 5,023.04 net as from 1 June 2020;

- on the amount of EUR 6,000 net as from 1 June 2020

- on the amount of EUR 6,000 net as from 1 March 2020

- on the amount of EUR 6,000 net as from on 1 April 2020);

- on the amount of EUR 6,000 net as from on 1 May 2020);

- on the amount of EUR 6,000 net as from on 1 June 2020);

- on the amount of EUR 6,000 net as from on 1 July 2020).

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