F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 29 January 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 29 January 2020,

in the following composition:

Geoff Thompson (England), Chairman

Daan de Jong (The Netherlands), member

Alexandra Gómez Bruinewoud (Uruguay), member

on the claim presented by the player,

Namhan Alidu, Ghana,

represented by Pedro Macieirinha

as Claimant / Counter-Respondent

against the club,

Al Jazeera Club, Jordan

as Respondent / Counter-Claimant

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 1 February 2019, the Ghanaian player, Namhan Alidu (hereinafter: “Claimant / Counter-Respondent” or “player”) concluded an employment contract (hereinafter: the contract) with the Jordanian club, Al Jazeera Club, (hereinafter: “Respondent / Counter-Claimant” or “club”) valid as from the date of signature until “the end of the football season 2020”.

2. According to Clause 1 of the contract, “in the event that there is a participation for the club in any continental or regional championship, this contract shall be extended to expire on the first registration period that follows to end of the season”.

3. In accordance with clause 17 of the contract, the player was entitled to a monthly salary of USD 1,500 payable at “the end of every Gregorian month […] provided that the amount does not exceed USD 30,000 at the end of the contract term”.

4. By means of clause 19 of the contract, the player was entitled to the following bonus allowances:

a) USD 2,500 if the club wins the league;

b) USD 10,000 if the club wins the AFC Champions League

5. By means of clause 25, “all notices and correspondence associated with this contract shall be delivered to both parties thereof by hand and against signature […] or at the postal address recorded in this contract”.

6. Clause 27 stipulated the following: “Both parties acknowledge the jurisdiction and competence of Jordan Football Association Arbitral Tribunal (if it exists, failure of which the committees or commissions assigned to hear sporting disputes) and the [CAS] as an agreed upon arbitrator to hear any sporting difference or dispute that I may be a party to. […] Furthermore, both parties shall be obliged to comply with the decisions made by Jordan Football Association Arbitral Tribunal – if it exists, or any committee or commission acting therefore, if it does not exist – and made by the [CAS]”.

7. On 5 July 2019, the player informed the club in writing that it failed to pay him the total amount of USD 4,500, corresponding to the monthly salaries of April, May and June 2019, granting the club 10 days to remedy the default.

8. On 20 July 2019, the player again put the club in default for the payment of USD 4,500, providing the club 24 hours to pay said amount.

9. On 21 July 2019, the player terminated the employment contract in writing, holding that three monthly salaries had been outstanding and that the club failed to reply to any of his default letters.

10. On 12 August 2019, the player lodged a claim in front of FIFA for breach of contract, requesting the total amount of USD 35,000 as follows:

a) USD 1,500 “for the salary of April 2019”;

b) USD 1,500 “for the salary of May 2019”;

c) USD 1,500 “for the salary of June 2019”;

d) USD 18,000 “referent to the monthly salaries until the end of the contract (July 2019 [until] June 2020)”;

e) USD 12,500 “referent to the following bonuses:”

i) USD 2,500 “if the club wins the league”;

ii) USD 10,000 “of the club wins the AFC Cup”.

11. In his claim, the player further requested “interests since the dates of the missing payments until full payment”.

12. The player further requested the imposition of sporting sanctions against the club.

13. The player explained that he always fulfilled his contractual obligations.

14. However, as per the player, the club failed to pay him the monthly salaries corresponding to April, May and June 2019, and did not reply to any of his default letters.

15. The player is therefore of the opinion that he had a just cause to terminate the contract and that he is “entitled to compensation corresponding to the value of the remuneration which would be due if the contract had ceased on the termination date”.

16. In its response, the club firstly disputed the jurisdiction of FIFA in the matter, alleging that clause 27 of the contract (cf. I.6) is a clear jurisdiction clause.

17. In this context, the club firstly highlighted that the Jordan Football Association Arbitral Tribunal (JFAAT) does not exist.

18. Therefore, as per the club, the parties “have exclusively agreed (in the absence of the JFAAT) to the jurisdiction of CAS”.

19. As such, the club deemed that the player’s claim is inadmissible.

20. In the alternative, the club lodged a counterclaim against the player requesting USD 19,950 plus 5% interest p.a. corresponding to the residual value of the contract, i.e. as from 22 July 2019 until the end of the 2020 football season “i.e. August 2020”.

21. The club further requested the imposition of sporting sanctions against the player.

22. In reply to substantive part of the player’s claim, the club firstly held that “on or around 28 February 2019 [it] was notified by the head coach of the [player’s] poor performance”.

23. According to the club, “between 15 April 2019 and the middle of June 2019 [it] tried to advice [the player] to seek a mutual termination of the contract”.

24. The club further explained that on 4 July 2019, in order to mutually terminate the contract, the player requested USD 15,000 from the club, to which the club agreed.

25. However, according to the club, the player “changed his mind” the following day, sending the club a default letter with regard to the outstanding monthly salaries of April, May and June 2019 (cf. I.7).

26. According to the club, on 7 July 2019 the player was arrested for sexual harassment. As per the club, “after negotiating […] the police agreed to release [the player] provided he undertakes not to re-offend”.

27. Furthermore, the club held that on 30 July 2019 it requested that the Players’ Status Committee of the Jordan FA sanction the player for failing to attend training without authorisation and for being arrested for sexual harassment.

28. In addition, the club stated that the player never terminated the employment contract, because it had “never received the notice of termination in accordance with the notification requirements under [clause] 25 of the contract”.

29. Alternatively, the club maintained that the player terminated the contract without just cause, given that the total amount outstanding to him did not allow for a contract termination with just cause.

30. In particular, the club noted that between February and June 2019 the player was entitled to a total amount of USD 7,500. Having said this, the club argued that the player received a total amount of USD 5,550 since February 2019, as follows:

a) “two payments Jordanian Dinars 1,050 which equals USD 1,500;

b) One payment of USD 1,500;

c) Accumulated payments of USD 1,050”.

31. Therefore, as per the club, only the amount of USD 1,950 remained outstanding to the player, and not the amount of USD 4,500 as claimed by the player.

32. In this regard, the club underlined that the player did not comply with the criteria stipulated in Art. 14bis RSTP, which in turn means that he did not have a just cause to terminate the contract.

33. Consequently, the club lodged a counterclaim against the player, as outlined above.

34. Finally, the club highlighted that there is no basis for the player to request future bonuses.

35. In reply to the club’s counterclaim, the player insisted that he had a just cause to terminate the contract on 21 July 2019, referring to the default letters he sent prior to termination.

36. Moreover, the player held that the club “voluntarily continued without paying [him] the amounts due”.

37. According to the player, given that he terminated the contract with just cause on 21 July 2019, the club’s counterclaim is to be rejected.

38. With regard to the sexual harassment accusations, the player explained that a club representative, who picked him up at the police station, “insisted that [he] sign a document, under the pretext of quickly ending the dispute”. In this regard, the player held that he “signed because he was convinced that it was the best for him”.

39. Thus, the player reiterated verbatim his request for relief.

40. In its duplica, the club referred again to the alleged request made by the player on 4 July 2019, holding this time that player “rudely demanded USD 27,000”.

41. With regard to the player’s statement that he signed the document at the police station under the pretext of quickly ending the dispute, the club argued that the player did “not even attempt to dispute the charges or place on record his innocence”.

42. Finally, the club highlighted that in his replica, the player “had not rejected or disputed having received USD 5,500”.

43. On 15 January 2020, the player informed FIFA that he has remained unemployed since he terminated his employment contract with the club.

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 12 August 2019. 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 the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player that have an international dimension. Within this context, the Chamber understood that, in principle, it would be competent to decide on the present litigation which involves a Ghanaian player and a Jordanian club regarding an employment-related dispute.

3. However, the Chamber acknowledged that the club contested the competence of FIFA’s deciding bodies on the grounds that as per the club, the parties had “exclusively agreed […] to the jurisdiction of CAS”, in accordance with clause 27 of the contract.

4. In this respect, the Chamber recalled that Clause 27 of the employment contract holds that “Both parties acknowledge the jurisdiction and competence of Jordan Football Association Arbitral Tribunal (if it exists, failure of which the committees or commissions assigned to hear sporting disputes) and the [CAS] as an agreed upon arbitrator to hear any sporting difference or dispute that I may be a party to. […] Furthermore, both parties shall be obliged to comply with the decisions made by Jordan Football Association Arbitral Tribunal – if it exists, or any committee or commission acting therefore, if it does not exist – and made by the [CAS]”.

5. Having examined the relevant provisions, the Chamber came to the unanimous conclusion that clause 27 of the employment contract does not constitute a clear and exclusive jurisdiction clause in favour of the CAS, since it firstly refers to the jurisdiction and competence of the Jordan Football Association Arbitral Tribunal. Consequently, the Chamber understood that the parties actually never clearly and undisputedly agreed upon a specific jurisdiction.

6. Thus, the Chamber established that the club’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that the Dispute Resolution Chamber 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 and that the claim of the player is admissible.

7. Next, 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 Players, and considering that the present claim was lodged on 12 August 2019, the 2019 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

8. 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.

9. The Chamber first acknowledged that the player and the club signed an employment contract on 1 February 2019 which, as per the player, would have expired on 30 June 2020. Given that there is no clear information on file that stipulates otherwise, the DRC firstly agreed that 30 June 2020 is the original date of contract expiry. Moreover, the Chamber recalled that, according to the player, he terminated the employment contract with the club on 21 July 2019.

10. In continuation, the Chamber established that the primary issue at stake is determining whether the player indeed terminated the employment contract on 21 July 2019 and, subsequently, whether he had a just cause to do so. In this respect, the Chamber deemed it essential to make a brief recollection of the parties’ arguments regarding the contract termination, and in particular, determine whether there was any outstanding remuneration due to the player on the day he terminated the contract.

11. In this context, the deciding authority firstly highlighted that in accordance with Clause 19 of the contract, the player was entitled to a monthly salary of USD 1,500. The Chamber further evoked that, according to the player, on the date of contract termination three monthly salaries in the total amount of USD 4,500, corresponding to the months of April, May and June 2019, had been outstanding.

12. Similarly, the DRC recalled that the club firstly argued that the player had not, in fact, terminated the contract at all. As per the club, the Chamber recalled, the player had not sent the default notices in accordance with the procedures stipulated in clause 25 of the contract. The Chamber further evoked that, in the alternative, the club argued that the player terminated the contract without just cause because the club paid him USD 5,550 between February and July 2019.

13. The Chamber firstly referred to the club’s position that it never received the notice of termination “in accordance with the notification requirements under [clause] 25 of the contract”. In this regard, the DRC concluded that from the evidence on file it remained undisputed that the club dully received the default letters and the termination letter sent by the player. As such, the Chamber unanimously agreed that the club’s argument that it never received the notice of termination, and that consequently the employment contract was never terminated, is to be rejected. In light of the above, the DRC concluded that the player unilaterally terminated the contract on 21 July 2019.

14. In continuation, the Chamber analysed the club’s argumentation that the player had terminated without just cause, since it allegedly paid the player USD 5,550 between February and July 2019. In this regard, the members of the Chamber took into account that in support of its position that it paid the player USD 5,550, the club submitted an in-house payment statements, to which it referred to as “Statement of Collection Salary”, showing unspecified financial transactions allegedly made to the player. Subsequently, the DRC referred to the principle of the burden of proof stipulated in art. 12 par. 3 of the Procedural Rules, and stressed that the club had not submitted convincing documentary evidence in support of such allegation.

15. Having established all of the above, bearing in mind the player’s claim as well as his default letters dated 5 July 2019 and 20 July 2019 respectively, the DRC concluded that the total amount of USD 4,500, consisting the monthly salaries for April, May and June 2019, had fallen due and remained unpaid when the player terminated the contract.

16. In this context, the DRC recalled that the amount of time passed between the date on which the first default letter was sent (i.e. 5 July 2019) and the date on which the contract was eventually terminated (i.e. 21 July 2019) amounted to 16 days.

17. Taking into account all of the above considerations, in particular the fact that three monthly salaries were outstanding, the fact that the player sent a default letter on 5 July 2019, the fact that the club failed to remedy the situation after receiving the default letter and the fact that the player terminated the contract 16 days later, the DRC determined that the player terminated the employment contract on 21 July 2019 with just cause.

18. Consequently, the Chamber decided to fully reject the club’s argumentation and counterclaim.

19. That said, the DRC concluded that the club is to be held liable for the early termination of the employment contract with just cause by the player and should therefore bear the consequences of its unjustified breach of the employment contract.

20. In continuation, prior to entering into the issue of the consequences of the early termination of the employment contract with just cause by the player, the Chamber firstly proceeded to determine the amount of outstanding remuneration, if any, still due to the player by the club to this day.

21. In this light, the Chamber firstly referred to its previous deliberations and reiterated that the amount of USD 4,500 corresponding to the monthly salaries of April, May and June 2019, was still outstanding to the player.

22. On account of the aforementioned considerations, the DRC 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 4,500.

23. In addition, the DRC referred to the player’s request for “interests since the dates of the missing payments until full payment”. In this regard, the Chamber unanimously agreed that the player’s request should be interpreted as meaning a request for interests as from the respective due dates. Thus, the Chamber decided to award the player interest at the rate of 5% p.a. on the amount of USD 4,500 as of the day following the day on which each of the respective instalments fell due.

24. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract payable by the club to the player in the case at stake. In doing so, the members of the Chamber first 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.

25. 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

26. 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 DRC recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. In this regard, the DRC emphasized beforehand that each request for compensation for contractual breach has to be assessed on a case-by-case basis taking into account all specific circumstances of the respective matter.

27. In order to estimate the amount of compensation due to the player in the present case, the Chamber first turned its attention to the remuneration and other benefits due to him under the existing contract and/or the new contract(s), which criterion was considered to be essential. The DRC 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.

28. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from its date of termination with just cause by the player, i.e. 21 July 2019, until 30 June 2020, and concluded that the player would have received USD 18,000 in total as remuneration had the contract been executed until its expiry date. Consequently, the Chamber concluded that the amount of USD 18,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

29. Having said this, the DRC acknowledged that in his claim, the player, inter alia, requested USD 12,500 as compensation for breach of contract “referent to the following bonuses:”

a) USD 2,500 “if the club wins the league”;

b) USD 10,000 “of the club wins the AFC Cup”.

30. In this light, in view of its character that is undeniably variable and uncertain from one season to another, the Chamber could not undoubtedly establish that the club would have paid said bonuses. Consequently, the Chamber did not take into consideration the said bonuses while assessing the residual value of the contract. In this regard, the members, referring to the principle of the burden of proof explicitly stipulated in art. 12 par. 3 of the Procedural Rules, also stressed that the player had not submitted any convincing documentary evidence in this respect.

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 able to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for termination of contract with just cause in connection with the player’s general obligation to mitigate his damages

32. Having said this, the DRC noted that according to the information on file, the player has remained unemployed since terminating the contract with the club on 21 July 2019.

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 USD 18,000 to the player as compensation for breach of contract.

34. In addition, taking into account the player’s request, the Chamber decided that the club must pay to the player interest of 5% p.a. on the amount of compensation as of the date on which the claim was lodged, i.e. 12 August 2019, until the date of effective payment.

35. Furthermore, taking into account the consideration under number II./7. 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.

36. In this regard, the Chamber established that, in virtue of the aforementioned provision, it has competence to impose a sanction on the club. More in particular, the DRC pointed out that, against clubs, the sanction shall consist in a ban 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.

37. Therefore, bearing in mind the above, the DRC decided that, in the event that the club does not pay the amount 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.

38. Finally, the Chamber recalled that the above-mentioned sanction 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.

39. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that the player’s claim is admissible and partially accepted and that any further claims lodged by the player are rejected. Furthermore, the Chamber concluded that the counterclaim of the club is rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant / Counter-Respondent, Namhan Alidu, is admissible.

2. The claim of the Claimant / Counter-Respondent is partially accepted.

3. The Respondent / Counter-Claimant, Al Jazeera Club, has to pay to the Claimant / Counter-Respondent outstanding remuneration in the amount of USD 4,500, plus interest at the rate of 5% p.a. on the aforementioned amount until the date of effective payment, as follows:

a) From 1 May 2019, on the amount of USD 1,500;

b) From 1 June 2019, on the amount of USD 1,500;

c) From 1 July 2019, on the amount of USD 1,500.

4. The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent compensation for breach of contract in the amount of USD 18,000, plus interest at the rate of 5% p.a. on the aforementioned amount as from 12 August 2019 until the date of effective payment.

5. Any further claim lodged by the Claimant / Counter-Respondent is rejected.

6. The counterclaim of the Respondent / Counter-Claimant, Al Jazeera Club, is rejected.

7. The Claimant / Counter-Respondent is directed to inform the Respondent / Counter-Claimant, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent / Counter-Claimant must pay the amounts mentioned under III.3. and III.4. above.

8. The Respondent / Counter-Claimant shall provide evidence of payment of the due amounts in accordance with under III.3. and III.4. to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

9. In the event that the amounts due plus interest in accordance with under III.3. and III.4. are not paid by the Respondent / Counter-Claimant within 45 days as from the notification by the Claimant / Counter-Respondent of the relevant bank details to the Respondent / Counter-Claimant, the Respondent / Counter-Claimant shall be banned 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 (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

10. The ban mentioned in III.9. will be lifted immediately and prior to its complete serving, once the due amounts are paid.

11. In the event that the aforementioned sums plus interest are 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 FIFA’s Disciplinary Committee for consideration and a formal decision.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note relating to the appeal procedure:

According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS.

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport (CAS)

Avenue de Beaumont 2

CH-1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer