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 13 August 2020
Decision of the
Dispute Resolution Chamber
passed on 13 August 2020,
regarding an employment-related dispute concerning the player Henri NDONG JUNIOR
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairman
Alexandra Gómez Bruinewoud (Uruguay/The Netherlands) member
Pavel Pivovarov (Russia), member
CLAIMANT:
HENRI NDONG JUNIOR, Gabon
Represented by Mr Jonás Vallina
RESPONDENT:
ALAHLY BENGHAZI SC, Libya
Represented by Mr Tarek Alaimi
I. FACTS OF THE CASE
1) On an unspecified date, the Gabonese player Mr Henri Ndong Junior (hereinafter: the
Claimant or the player) and the Libyan Alahly Benghazi SC (hereinafter: the Respondent or
the club) allegedly signed an employment contract, valid as from 28 January 2019 until 30
June 2019. The contract does not contain the signature of the club.
2) Pursuant to clause 5 of the contract, the club undertook to pay the player the total
remuneration of USD 35,000.
3) Clause 12 of the contract stipulated that “The disputes that arise between the parties shall be
solved through amicable solutions, and if that fails, the dispute shall be settled by the Libyan
football Federation or the International Federation of Football (FIFA)”.
II. PROCEEDINGS BEFORE FIFA
A. Position of the Claimant
4) On 14 May 2019, the player lodged a claim against the club in front of FIFA for breach of
contract, requesting the following, after the amendment of 5 June 2019:
“1. The Respondent is condemned to pay to the player the total sum of 24.018,75 $ (USD) due
the unpaid salaries since 28.01.2019 until 13.05.2019.
2. The Respondent is condemned to pay to the player the total sum of 10.980,00 $ (USD) as
compensation regarding the pending salaries in his contract until 30.06.2019.
3. The Respondent, according to the art. 102 of the Swiss Code is condemned to pay to the
Claimant the aditional default interest amount 5 % p.a. rate, since 13.05.2019 over the total
due amount of 24.018,75 $ (USD).
4. The Respondent, according to the art. 102 of the Swiss Code is condemned to pay to the
Claimant the aditional default interest amount 5 % p.a. rate, since 13.05.2019 over the total
due amount of 10.980,00 $ (USD).
5. Costs fees imposition to the Respondent.
6. Flight ticket cost amount 1.108,82 EURO for the player return home to Gabon.”.
5) The aforementioned amounts are broken down as follows:
“Taking for the calculation the termination letter dated 13.05.2019 the total unpaid salaries
since 28.01.2019 until 13.05.2019 are.
- January 2019 (proportional 3 x 228.75= 686,25 $ (USD)
- February 2019 (proportional 28 x 228.75=6.405,00$ (USD)
- March 2019 (proportional 31 x 228.75= 7.091,25 $ (USD)
- April 2019 (proportional 30 x 228.75=6.862,50 $ (USD)
- May 2019 (01st May 2019-13.05.2019= 13x 228.75= 2973,75 $ (USD)
Total amount due: 24.018,75 $ (USD)
Compensation for Season 2018-2019 salaries pending after the termination letter
- May 2019 (13.05.2019-31.05.2019= 18 x 228.75= 4.117,50 $ (USD)
- June 2019 (proportional 30 x 228.75=6.862,50 $ (USD)
Total amount : 10.980,00 $ (USD)”
6) As to the request for the flight tickets, the player provided a copy of a booking confirmation
for a flight on 19 May 2019 from Benghazi, Libya, to Tunis, Tunisia, for a value of EUR 330.66,
as well as an electronic ticket for a flight from Tunis to Libreville, Gabon, on 21 May 2019 for
the value of XFA 509,700 (i.e. circa EUR 780).
7) In his claim, the player explains that he did not received any salary as from the beginning of
the employment relationship.
8) Notwithstanding the above, on 5 March 2019 the player received “just 1.000 USD as random
payment for the daily expenses”.
9) The player further sustained that he never received a duly signed and stamped copy of the
employment contract. Furthermore, he held that the club kept his passport, “which remained
in the club office, although the player has requested it in several timed”.
10) On 26 April 2019, the player put the club in default of payment, requesting the following:
“(i) Restore to the player his passport document inmediatly recieved this notice.
(ii) Restore to the player his copy of the contract inmediatly signed and stamped by the club
and stamped by LFF, once recieved this notice.
(iii) Deposit to the player the overdue salaries corresponding to the season 2018-2019 until
today 26th April in the detailed bank account”.
11) The player granted the club 15 days to remedy the default.
12) On 10 May 2019, the club allegedly offered the player to terminate the contract upon the
payment of USD 9,000. As per the player, he refused to accept said offer, “leaving the meeting
without any agreement and without his passport”.
13) On 13 May 2019, the player unilaterally terminated the contract with the club in writing.
14) Through the amendment to the claim, the player informed FIFA that on 30 May 2019 the club
had sent a letter with the following content:
“We inform you that you should come to Libya within one week, and we remind you your
contract with the club ends on 30 June 2019.
For that you shouldn’t leave Libya, as we said before your salaries for three months (February,
March, April) still at the Libyan federation football since 30 April 2019, as you know the reason
for delay in paying you your salaries because you did not give us your bank account number.
Foer that we set your salaries in Libyan federation football and we also confirm that the club
has complied with all the terms of the contract despite the fact that you are not committed to
it,e ve though you have been dismissed by the coach for not being ready and fit to player and
claim injury and absence from training and friendly matches which is guaranteed under
penalties as stipulated by the club regulations.
If you don’t join the team a week from now, we will take legal action, and we will file a complaint
against you at the dispute resolution chamber of the Libyan federation football”.
B. Position of the Respondent
15) In its reply, the club first indicated that based on the jurisdiction clause in clause 12 of the
contract, the dispute resolution body of the Libyan Football Federation was competent to
hear the present dispute. The club however did not provide any documentation related to
the composition and functioning of the aforementioned deciding body.
16) As to the substance, the club underlined that the claim of the player was a fraudulent
enrichment attempt based on a contract not signed by the club.
17) What is more, the club asked for its rights of defense to be respected and “reasonable time”
to be given for a full answer. The club filed its answer before the expiry of the set deadline
and provided a valid power of attorney only after the expiry of such deadline.
C. Contractual situation of the player
18) The player signed a new contract with the Saudi club Al Hejaz Club valid as from 21 August
2019, i.e. after the original expiry date of his contract with the club.
III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
A. Competence
19) In relation to the competence, the Dispute Resolution Chamber (hereinafter also referred to
as the DRC or the Chamber) 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 14 May 2019
and decided on 13 August 2020. Consequently, the June 2020 edition of the Rules governing
the procedures of the Players’ Status Committee and the Dispute Resolution Chamber hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the
Procedural Rules).
20) Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed
that in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b) of the Regulations on
the Status and Transfer of Players, the Dispute Resolution Chamber is competent to deal with
employment-related disputes with an international dimension between a player and a club.
B. Admissibility
21) Notwithstanding the above, the Chamber acknowledged that the club contested the
competence of FIFA arguing that pursuant to clause 12 of the contract the Libyan Football
Federation was the competent tribunal to enter into the substance of this matter.
22) In this context, the Chamber first deemed it essential to verify whether the contract indeed
contained a clear and exclusive arbitration clause in favour of one specific deciding body
under the auspices of the Libyan Football Federation. In this respect, the Chamber referred to
the wording of clause 12 of the contract, which stipulates that: “The disputes that arise between
the parties shall be solved through amicable solutions, and if that fails, the dispute shall be
settled by the Libyan football Federation or the International Federation of Football (FIFA)”.
23) Having analysed the aforementioned clause, the Chamber concluded that not only it does
not indicate a specific deciding body functioning under the auspices of the Libyan Football
Federation but it also refers that any dispute between the parties can be submitted to FIFA.
Thus, clause 12 of the contract cannot be considered as a valid arbitration clause, stipulating
the clear and exclusive jurisdiction of one specific deciding body of the Libyan Football
Federation.
24) As a result of the aforementioned, the Chamber concluded that the club’s objection towards
the competence of FIFA to deal with the present matter has to be rejected, without the need
of any further analysis, as the first pre-requisite – that of a clear and exclusive arbitration
clause contractually agreed between the parties – is not met.
25) Thus, the Chamber is competent to consider the present matter as to the substance, on the
basis of art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and
Transfer of Players and the claim is admissible.
C. Applicable legal framework
26) The Chamber analysed which edition of the 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 Players, and considering that the present
claim was lodged on 14 May 2019, the June 2018 edition of said regulations is applicable to
the matter at hand as to the substance.
27) The competence of the Chamber and the applicable regulations having been established, the
Chamber entered into the substance of the matter. The Chamber continued by
acknowledging the above-mentioned facts as well as the documentation contained in the file
in relation to the substance of the matter. 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.
D. Burden of proof
28) 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.
E. Merits of the dispute
I. Main legal discussion
29) The Chamber wished to recall in this respect the main elements that gave rise to the present
dispute.
30) In this respect, the Chamber noted that while the player claims that he terminated the contract
with just cause on 13 May 2019, since he never received any remuneration from the club since
the beginning of the contract except for “1.000 USD as random payment for the daily
expenses” on 5 March 2019, the club alleges that the parties never actually signed an
employment contract.
31) In view of the foregoing, the Chamber deemed that it first would have to address the issue
of the existence of an employment contract binding the parties and subsequently, in case the
contractual link could be established, whether its unilateral termination by the player had or
not a just cause.
II. Considerations
32) As to the question of the existence of a valid and binding contract between the parties, the
Chamber first deemed it important to remind the parties that in order for an employment
contract to be considered as valid and binding, apart from the signature of both the employer
and the employee, it should contain the essentialia negotii of an employment contract, such
as the parties to the contract, their role, the duration of the employment relationship, the
remuneration.
33) Furthermore, the Chamber deemed it essential to highlight that according to art. 1.2 of the
Swiss Code of Obligations (CO) the expression of intent in the conclusion of a contract may
be express or implied.
34) Bearing in mind the foregoing, the Chamber referred to the concrete elements of the case at
hand and noted that, in spite of the fact that the club denies having ever signed a contract
with the player and that indeed its signature is not on the contract, it has according to the
information on TMS uploaded such contract in the context of the player’s transfer to and
registration with the club. Not only that, the club indicated in TMS that it had signed a
contract with the player valid as from 28 January until 30 June 2019 for a total fixed
remuneration of USD 35,000. Furthermore, the player’s ITC was received by the Libyan
Football Federation on 31 January 2019.
35) The Chamber also noted that the player provided a copy of a letter dated 30 May 2019, by
means of which the club uncontestably referred to the player as one of its employees and
even indicated that it was allegedly in compliance with its obligations. The Chamber further
noted that the club did not contest having paid the player the amount of USD 1,000 on 5
March 2019 in relation to their employment contract.
36) Thus, the Chamber concluded that, in spite of the lacking signature of the club on the
contract, the latter was without a doubt concluded by the parties and the club expressed its
clear intent to hire the player by introducing his transfer instruction in TMS along with all the
relevant documentation, including the employment contract. Thus, all essentialia negotii are
present and the contract is to be considered as valid and binding between the parties.
37) In view of the foregoing, the Chamber moved on to the analysis of the unilateral termination
of the contract by the player on 13 May 2019.
38) At this point, the Chamber referred to art. 12 par. 3 of the Procedural Rules and noted that,
while the player provided evidence that on 26 April 2019 he sent a default letter to the club
requesting the payment of his outstanding remuneration, the restitution of this passport and
a copy of the employment contract, granting in 15 days to remedy the default, the club did
not discharge its burden of proof with regard to the correct payment of the player’s
remuneration.
39) Having said that, the Chamber referred to art. 14bis par. 1 of the Regulations, according to
which “In the case of a club unlawfully failing to pay a player at least two monthly salaries on
their due dates, the player will be deemed to have a just cause to terminate his contract,
provided that he has put the debtor club in default in writing and has granted a deadline of at
least 15 days for the debtor club to fully comply with its financial obligation(s). Alternative
provisions in contracts existing at the time of this provision coming into force may be
considered”.
40) Bearing in mind the foregoing, the Chamber noted that the player correctly followed the
proceedings established in art. 14bis of the Regulations and therefore, in the absence of any
valid justification presented by the club, on 13 May 2019 he terminated the contract with just
cause, based on the non-payment of all remuneration due as from the start of the contract,
except for USD 1,000.
41) As a result, the club is to be held liable for the early termination of the employment contact
with just cause by the player.
42) In continuation, the Chamber focused its attention on the consequences of such termination.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the
player is entitled to receive from the club an amount of money as compensation for breach
of contract in addition to any outstanding payments on the basis of the relevant employment
contract.
43) In this regard, the Chamber first addressed the issue of unpaid remuneration at the moment
when the contract was terminated by the player and decided that, in accordance with the
general legal principle of pacta sunt servanda, the club is liable to pay to the player
outstanding remuneration in the total amount of USD 20,000.
44) The Chamber noted that the total fixed remuneration for the period 28 January 2019 to 30
June 2019 represented USD 35,000. Therefore, the player’s monthly remuneration for
February to June 2019 corresponded to USD 7,000. As such, the player shall be awarded the
unpaid months of February, March and April 2019, for a total amount of USD 21,000 from
which USD 1,000 paid on 5 March shall be deducted.
45) In line with the Chamber’s jurisprudence and as per the player’s request, interest of 5% p.a.
applies over the aforementioned amount of USD 20,000 which remains unpaid and over the
paid amount of USD 1,000 as from 1 March 2019 until 5 March 2019.
46) As to the player’s request for the reimbursement of flight tickets, in view of the substantial
evidence provided, the Chamber decided to award the player the amounts of EUR 330.66 and
XFA 509,700 plus 5% interest p.a. as from 14 May 2019 until the date of effective payment.
47) In continuation, having established that the club is to be held liable for the early termination
of the employment contract with just cause by the player, the Chamber focused its attention
on the consequences of such termination. Taking into consideration art. 17 par. 1 of the
Regulations, the DRC decided that the player is entitled to receive an amount of money from
the club as compensation for the termination of the contract with just cause in addition to
any outstanding payments on the basis of the relevant employment contract.
48) 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 members
of 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.
49) 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.
50) As a consequence, 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 nonexhaustive
enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
51) The Chamber then turned its attention to the remuneration and other benefits due to the
player under the existing contract and/or the new contract, which criterion was considered
by the Chamber to be essential. The Chamber deemed it important to emphasise that the
wording of art. 17 par. 1 of the Regulations allows it to take into account both the existing
contract and the new contract, if any, in the calculation of the amount of compensation.
52) Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with
the calculation of the monies payable to him under the terms of the employment contract
from its date of termination with just cause by the player, i.e13 May 2019 until 30 June 2019
and concluded that the player would have received in total USD 14,000 as remuneration had
the contract been executed until its expiry date. Consequently, the Chamber concluded that
the amount of USD 14,000 serves as the basis for the determination of the amount of
compensation for breach of contract.
53) In continuation, the Chamber verified 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. 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.
54) The Chamber noted the player signed a new contract with the Saudi club Al Hejaz Club valid
as from 21 August 2019, i.e. after the original expiry date of his contract with the club. Thus,
the player did not manage to mitigate the damages of the unjustified breach of the contract
by the club. Thus, he should be entitled to the full residual value of his contract with the club,
i.e. USD 14,000.
55) In addition, taking into account the player’s request as well as the constant practice of the
Dispute Resolution Chamber in this regard, the DRC decided that the Respondent must pay
to the Claimant interest of 5% p.a. on the amount of compensation as of the date of the claim,
i.e. 14 May 2019 until the date of effective payment.
III. Conclusion
56) As a result of the aforementioned, the Chamber decided that the player’s claim is admissible
and partially accepted. The club should pay the player the following amounts:
- USD 6,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 2019 until
the date of effective payment;
- 5% interest p.a. on the amount of USD 1,000 as from 1 March 2019 until 5 March 2019;
- USD 7,000 as outstanding remuneration plus 5% interest p.a. as from 1 April 2019 until the
date of effective payment;
- USD 7,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2019 until the
date of effective payment;
- EUR 330.66 plus 5% interest p.a. as from 14 May 2019 until the date of effective payment;;
- XFA 509,700 plus 5% interest p.a. as from 14 May 2019 until the date of effective
payment;; and
- USD 14,000 as compensation for breach of contract plus 5% interest p.a. as from 14 May
2019 until the date of effective payment;
IV. Legal Consequences
57) Subsequently, taking into account the previous considerations, 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.
58) 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.
59) Therefore, bearing in mind the above, the Chamber 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.
IV.DECISION OF THE DISPUTE RESOLUTION CHAMBER
1) The claim of the Claimant, Henri Ndong Junior, is admissible.
2) The Claim of the Claimant is partially accepted.
3) The Respondent, Alahly Bengazi SC, has to pay to the Claimant, the following amount:
- USD 6,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 2019 until
the date of effective payment;
- 5% interest p.a. on the amount of USD 1,000 as from 1 March 2019 until 5 March 2019;
- USD 7,000 as outstanding remuneration plus 5% interest p.a. as from 1 April 2019 until the
date of effective payment;
- USD 7,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2019 until the
date of effective payment;
- EUR 330.66 plus 5% interest p.a. as from 14 May 2019 until the date of effective payment;;
- XFA 509,700 plus 5% interest p.a. as from 14 May 2019 until the date of effective
payment;; and
- USD 14,000 as compensation for breach of contract plus 5% interest p.a. as from 14 May
2019 until the date of effective payment.
4) Any further claims of the Claimant are rejected.
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 (cf. CAS Directives at Legal.FIFA.com).
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