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 14 January 2021
Decision of the
Dispute Resolution Chamber
Passed on 14 January 2021,
regarding an employment-related dispute concerning the player Gounerou Josue
Aurelien Mohy
COMPOSITION:
Clifford J. Hendel, (USA), Deputy Chairman
Michele Colucci, (Italy), member
Mohamed Muzammil, (Singapore), member
CLAIMANT / COUNTER-RESPONDENT:
Gounerou Josue Aurelien Mohy, Côte
d'Ivoire
Represented by Mr. Slim Boulasnem
CLAIMANT / COUNTER-RESPONDENT:
Club Saham, Oman
Represented by Mr Pedro Macieirinha
I. FACTS OF THE CASE
1. The player, Mr Aurelien Gounerou Josue Mohy from Ivory Coast (hereinafter: the player) and the
Omani club, Saham Club (hereinafter: the club), concluded an employment contract valid as
from 10 September 2019 until 31 May 2020.
2. The player was entitled to a monthly salary of USD 3,500 as well as a signing-on fee totalling
USD 15,000 due in 3 instalments of USD 5,000, the first instalment being due one month after
the receipt of the player’s ITC and the player passing his medical check-up, the second and third
ones “at the end of the season”.
3. Furthermore, the player was entitled to one return flight ticket “from his country to Muscat”.
4. According to the player, on 20 March 2020, the parties concluded an addendum to the
employment contract. The player alleges that with such addendum, the parties agreed to extend
the employment contract until the end of the sporting season. The player indicated that he only
received an unsigned copy of such document.
5. On 29 June 2020, the player put the club in default regarding the payment of his salaries of
March, April, May and June 2020 for a total amount of USD 14,000 as well the second and third
instalments of the signing on fee, i.e. USD 10,000. The player granted a deadline of 15 days to
the club to proceed to the payment.
6. Having received no reply to his default notice nor any payment, the player terminated the
contract on 20 July 2020.
7. Following the termination of the contract, the player remained unemployed up until the date of
the present decision.
II. PROCEEDINGS BEFORE FIFA
8. On 23 July 2020, the Claimant filed a claim against the Respondent regarding outstanding
remuneration and compensation for breach of contract before FIFA. A summary of the parties’
positions is detailed below.
a. The claim of the Claimant
9. According to the Claimant, he deems that he had just cause to terminate the employment
contract in accordance with art. 14bis, in light of the four monthly salaries and the two
instalments of the signing on fee outstanding at the date of the termination of the contract.
10. As to his request for compensation for breach of contract, the player holds that he accepted in
good faith to extend the employment contract due to the extension of the season in light of the Covid-19 pandemic and that the residual value of the contract corresponds to USD 10,500 i.e.
salaries from July to September 2020.
11. The requests for relief of the Claimant were the following:
Outstanding remuneration:
USD 3,500 for the salary of March 2020 plus 5% interest as from 1 April 2020,
USD 3,500 for the salary of April 2020 plus 5% interest as from 1 May 2020,
USD 3,500 for the salary of May 2020 plus 5% interest as from 1 June 2020,
USD 3,500 for the salary of June 2020 plus 5% interest as from 1 July 2020,
USD 10,000 for the signing on fee plus 5% interest as from 1 June 2020.
Compensation for breach of contract:
USD 10,500 for the salaries of July, August and September 2020 plus 5%
interest as from the date of termination.
One return flight ticket Muscat-Abidjan, the value of which shall be determined by FIFA
Travel
EUR 5,000 for legal fees.
b. Position of the Respondent
12. In spite of having requested to do so, the club did not reply to the claim.
13. After the closure of the investigation, the club alleged that it had not received the claim at its
official addresses, i.e. saham.club@hotmail.com and saham@ofa.om, and requested the FIFA
administration to reopen the investigation of the present matter. The FIFA administration
informed the Respondent that it was not in a position to grant their request to reopen the
investigation as the FIFA administration had duly notified the claim to the addresses contained
in the Transfer Matching System (TMS), in accordance with art. 9bis par. 3 of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber.
c. Respondent’s counterclaim
14. On 24 November 2020, after the FIFA administration informed the club that the investigation
was closed and that it was not in a position to grant the club a new deadline to reply to the
player’s claim, the club lodged a counterclaim against the player.
15. In this regard, the FIFA administration referred the club once again to art. 9 par. 3 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber, according to which “in case the opposing party wishes to lodge a counter-claim, it
shall submit within the same time limit applicable to the reply its petition containing all the
elements described in paragraph 1”. Consequently, the FIFA administration informed the club that it will be up to the deciding body to decide as to whether the club’s counter-claim is
admissible.
III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a. Competence and applicable legal framework
16. 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 23 July 2020 and submitted for decision on
14 January 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 2019 edition of the Procedural Rules is
applicable to the matter at hand.
17. 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. b) of the
Regulations on the Status and Transfer of Players (edition January 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 player from Ivory Coast and an Omani club.
18. 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 January 2021), and considering that
the present claim was lodged on 23 July 2020, the June 2020 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Admissibility of the club’s counterclaim
19. In continuation, the Chamber analysed whether the club’s counterclaim is admissible.
20. Indeed, the Chamber recalled the chronology of events in this matter. The FIFA administration
notified the player’s claim to the e-mail address indicated in TMS, in accordance with art. 9bis
par. 3 of the Procedural Rules; however, the club did not reply to the claim within the given
deadline.
21. It is only after the FIFA administration closed the investigation that the club reacted and argued
that the claim had not been sent to the club’s e-mail addresses, i.e. saham.club@hotmail.com
and saham@ofa.om. The club therefore requested the FIFA administration to reopen the
investigation and grant the club an opportunity to reply to the claim.
22. The FIFA administration, relying on the contents of art. 9bis par. 3 of the Procedural Rules, denied
the club’s request, as the claim had been sent to the e-mail addresses indicated in TMS, which
are considered a valid and binding means of communication.
23. The club, though, subsequently lodged a counterclaim, despite the fact that the investigation of
the present had already been closed.
24. At this point, the Chamber deemed that the FIFA administration indeed acted in accordance
with the Procedural Rules by establishing that, since the claim was sent to the e-mail addresses
indicated in TMS, the claim had been correctly notified to the club. The fact that the club uses
other e-mail addresses is irrelevant, as long as those e-mail addresses are not included in TMS.
The Chamber, therefore, considered that the club had renounced to its right of defence by failing
to reply to the club within the given deadline.
25. As a result, the Chamber also considered that the club’s counterclaim, which was lodged after
the FIFA administration had already closed the investigation, could not be heard in light of the
fact that it was not lodged within the given deadline to reply to the player’s claim, in violation
of art. 9 par. 3 of the Procedural Rules.
26. In conclusion, the Chamber unanimously decided that the club’s counterclaim is inadmissible.
c. Burden of proof
27. 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.
28. 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.
d. Merits of the dispute
29. 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
30. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the player terminated the employment contract between the
parties on 20 July 2020, alleging that he had just cause to do so in accordance with art. 14bis of the Regulations. In this context, the player alleged that the contractual relationship had been
extended until the end of the extended season 2019/2020, i.e. until September 2020.
31. In view of the player’s allegations, the Chamber deemed that it must establish the exact duration
of the employment relationship, or, precisely, whether the parties had extended their
employment relationship beyond 31 May 2020, as originally agreed upon.
32. Indeed, the Claimant alleged that he had concluded an extension of the employment contract
and provided as evidence a document, which is not signed by either parties, although it bears a
stamp which indicates “Saham Club”. The player explained in this regard that he had not been
provided with a signed copy of this document.
33. The document in question states the following:
“Date: 20/03/2020
I acknowledge that I’m the player / Gounerou Josue Aurelien Mohy That I have received the
salaries of the months of October, November, December, January, and February from the value
of my signed contracts with the club, as well as the advance payment from the presenter of the
contract the first instalment and we look at the suspension of the Omani league based on the
decision of the Omani Federation due to the Crohn’s disease, because I do not mind playing the
rest of the league with the club and that I leave To my home country and back to the Sultanate
to playing the remaining matches of the season whenever the club asked me to”.
34. Having paid close attention to the contents of said document, the Chamber held, first of all, that
it evidently misses one of the essentiali negotii in order for a contract to be valid, that is, valid
signatures of both parties. Furthermore, the Chamber referred to its well-established
jurisprudence according to which, a club stamp is not considered a valid signature on the club’s
behalf.
35. In addition, the Chamber underlined that the contents of such document are far from clear as
to the parties’ obligations and do not indicate the exact duration of the alleged extension of the
contract, nor does it indicate a salary. All of these elements are, in the Chamber’s view, to be
considered essential elements to determine that a contract was validly entered into.
36. In conclusion, the DRC held that the player did not substantiate his claim that the parties had
extended their employment relationship. In particular, the document which the player provided
in support of his allegations does not constitute a valid contract whereby it could be established
that the parties’ contractual relationship had been extended beyond 31 May 2020, date on
which their employment contract was due to expire.
37. In view of the above, the Chamber determined that, in any event, it cannot grant any
compensation for breach of contract to the player since it appears that the contractual
relationship between the parties had already expired on 31 May 2020.
38. Notwithstanding the above, the Chamber went on to consider the player’s claim for outstanding
remuneration. The player claimed that he had not received any salary between February and
May 2020, as well as the second and third instalments of the signing-on fee, which were due at
the end of the season.
39. In this regard, the Chamber reiterated that the club had renounced to its right of defence by
failing to reply to the club’s claim within the given deadline. Therefore, the player’s allegations
regarding the outstanding remuneration remained uncontested. Equally, no valid reason was
put forward as to the non-payment of the claimed outstanding remuneration.
40. In view of the above considerations, the DRC decided that, in accordance with the principle of
pacta sunt servanda, the club must pay the player outstanding remuneration in the total amount
of USD 20,500 representing the salaries, of March, April and May 2020 in the value of USD
3,500 each, as well as the second and third instalments of the signing-on fee in the value of
USD 5,000 each.
41. Furthermore, in light of the player’s respective claim as well as the Chamber’s constant practice,
the latter decided to award interest of 5% p.a. on the outstanding remuneration due as follows:
o 5% interest p.a. on the amount of USD 3,500 as from 1 April 2020,
o 5% interest p.a. on the amount of USD 3,500 as from 1 May 2020,
o 5% interest p.a. on the amount of USD 3,500 as from 1 June 2020,
o 5% interest p.a. on the amount of USD 10,000 as from 1 June 2020.
42. In continuation, and referring to the Chamber deemed that the player is also entitled to a oneway
flight ticket to Muscat-Abidjan to travel home, the value of which was determined by FIFA
Travel at CHF 1,019.
ii. Compliance with monetary decisions
43. Finally, taking into account the consideration under number 18. 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.
44. 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 and for the maximum duration
of three entire and consecutive registration periods.
45. 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, communicates the relevant bank details to the Respondent, provided that the decision is final and binding, 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.
46. The DRC recalled that the above-mentioned bans 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.
47. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any
of the parties.
e. Costs
48. Finally, 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. Therefore, the player’s
claim for legal fees must be rejected.
IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant/Counter-Respondent, Gounerou Josue Aurelien Mohy, is partially
accepted.
2. The Respondent/Counter-Claimant, Club Saham, has to pay to the Claimant/Counter-
Respondent, Gounerou Josue Aurelien Mohy, the following amounts:
- USD 20,500 as outstanding remuneration plus 5% interest p.a. as follows:
o 5% interest p.a. on the amount of USD 3,500 as from 1 April 2020,
o 5% interest p.a. on the amount of USD 3,500 as from 1 May 2020,
o 5% interest p.a. on the amount of USD 3,500 as from 1 June 2020,
o 5% interest p.a. on the amount of USD 10,000 as from 1 June 2020.
- CHF 1,019 as costs of a one-way economy flight ticket Muscat-Abidjan.
3. Any further claims of the Claimant/Counter-Respondent are rejected.
4. The counter-claim of the Respondent/Counter-Claimant is inadmissible.
5. 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.
6. 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).
7. 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:
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