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 4 June 2020
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 4 June 2020,
regarding an employment-related dispute concerning the player Peter Odhiambo Opiyo
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairman Elvis Chetty (Seychelles), member Tomislav Kasalo (Croatia), member
CLAIMANT / COUNTER-RESPONDENT:
PETER ODHIAMBO OPIYO, Kenya
Represented by Mr. Felix Majani
RESPONDENT / COUNTER-CLAIMANT:
FC ALTYN ASYR, Turkmenistan
Represented by Mr. Farid Bashirov
INTERVENING PARTY: NAIROBI CITY STARTS, Kenya
Represented by Mr. Felix Majani
I. FACTS OF THE CASE
1) On 31 July 2019, the Kenyan player Mr Peter Odhiambo Opiyo (hereinafter: the Claimant/Counter-Respondent or the player) and the Turkmen club FC Altyn Asyr (hereinafter: the Respondent/Counter-Claimant or the club) signed an employment contract, valid for the football season 2019/2020, from the date of signature until 30 June 2020.
2) Pursuant to clause 4.2, the player was entitled to a total remuneration of USD 77,000, broken down as follows:
a) USD 49,500 upon signature;
b) USD 2,500 for 11 months, from August 2019 to June 2020.
3) The contract also provided for 2 round-trip economy flight tickets for the player “for his travel to his home country Kenya”.
4) The contract also stipulated in its clause 6 that “This contract consists of 6 articles and prepared in 4 copies. In case of any dispute arising from this contract Turkmenistan Football Federation and FIFA regulations are applicable”.
5) On 4 December 2019, the player unilaterally terminated the contract with the club in writing.
II. PROCEEDINGS BEFORE FIFA
A. Position of the Claimant/Counter-Respondent
6) On 14 February 2020, the Claimant lodged the present claim for termination of the contract with just cause requesting from the Respondent the following:
a) That the DRC determines that the contract was breached by the club on 31 July 2019;
b) That the DCC determined that the player terminated the contract on 31 July 2019 with just cause;
c) Outstanding remuneration in the amount of USD 10,323;
d) EUR 2,104 in “overdue benefits being 2 rounds trip air tickets Ashgabat-Nairobi”;
e) USD 49,500 “in overdue signing on fee”;
f) USD 14,778 as compensation for breach of contract;
g) USD 7,500 or alternatively USD 15,000 as additional compensation;
h) Procedural costs;
i) 5% interest p.a. :
i) over the outstanding salaries (USD 10,323) as of 5 December 2019;
ii) over the outstanding sign-on fee (USD 49,500) as of 2 August 2019;
iii) over the mitigated compensation and additional compensation as of 5 December 2019.
7) In his claim, the player explained that as from 18 July 2019, he entered into negotiations with the club through the actions of an agent acting as intermediary “Mr Dragan” which became the link between Claimant & Respondent and another agent allegedly acting on the Respondent’s side, “Mr Ceyhun”. Even though no agent’s/intermediary’s contract is on file, the player explained that the subsequent WhattsApp conversations with the Respondent took place via said agent(s).
8) Following such negotiations, on 31 July 2019, the player and the club signed the aforementioned employment contract, valid as from the date of signature until 30 June 2020.
9) According to the Claimant, on 9 August 2019, the club contacted him and informed him that it was going to purchase his flight ticket to Dubai. On the same date, the club allegedly informed the player that it would get him a visa to travel to Hanoi on 19 August 2019. In this respect, the player provided a copy of the WhatsApp conversations allegedly maintained with the club.
10) As per the player, on 15 August 2019, the club allegedly informed him that it could neither get him a ticket to Vietnam nor a work permit “because of political situations in [Turkmenistan]”. As from that date until 18 November 2019, the parties allegedly exchanged several WhatsApp messages related to the progress obtaining the player’s visa.
11) On 18 November 2019, the player sent a default letter to the club, claiming it had a) “failed, refused and/or abdicated their duty to pay the player’s wages ever since he signed for the cub, TO date the player’s wages remaining in arrears for 4 months”, b) “failed, refused and/or abdicated their duty to facilitate the processing of the player’s work permit” and c) “failed, refused and/or abdicated their duty to facilitate the processing of the player’s visa for purposes of enabling him to travel to Turkmenistan to practice his trade and to train and player with his teammates”.
12) Having said this, the player granted the club 15 days to remedy the default, process his work permit and include him in the club’s training sessions.
13) As per the Claimant, due to the fact that the Respondent “ignored and/or refused to address the Player’s demands”, he sent a termination letter on 4 December 2019.
B. Position of the Respondent/Counter-Claimant
14) In its reply to the claim, the club first referred to clause 6 of the contract and claimed that “the plaintiff did not provide for the possibility of applying to the football Federation of Turkmenistan”.
15) As to the substance, the club sustained that the player terminated the contract unilaterally without informing the club and failed to provide a proof of notification of said termination. In addition, the club held that the player acted as such in order to sign with its new club and that he could actually have claimed earlier between November 2019 and January 2020.
16) Furthermore, the club held that the player did not provide evidence justifying the fulfilment of the required modalities of an agent’s representation (art. 3.3. of the “FIFA mediation Rules”) and, more generally, that it did not recognize the interactions which took place via the two aforementioned agents, requesting that the WhattsApp conversations provided should not to be taken into account.
17) Moreover, the club rejected the player’s request for relief entirely sustaining the following for each claimed amount:
a) The player provided no evidence of the salary arrears in the amount of USD 10,232;
b) The club was the one who purchased the player’s ticket in the amount of EUR 2,104;
c) The amount of USD 49,500 is not due since the payer did not perform his “labour duties, illegal early termination of the contract unilaterally”;
d) The payment of the amounts of USD 14,778, USD 7,500 or USD 15,000 is not provided for in the contract and therefore is not due.
18) Consequently, the club deems that the player failed to execute the contract and lodged a counterclaim against him, requesting USD 77,000 as compensation for early termination of the contract as well as “disciplinary sanctions on the [player] in accordance with article 17, 18 of the FIFA Regulations
C. Replica of the Claimant/Counter-Respondent
19) For his part, the player first rejected the club’s apparent objection to FIFA’s competence, as the clause to which it alluded is not exclusive and it even mentions FIFA, being merely a “choice of law clause”. Consequently, the player deemed that FIFA should be competent in the present case.
20) As to the substance, the player referred to the evidence provided in his claim (i.e. transfermarkt extracts), to the well-executed ITC and TPO issuance in TMS, and to the club’s general behavior, acknowledging the conclusion of the contract. Therefore, the player player deems that it is clear that the club approved all acts performed by the agents, that it was in constant contact with the player and that it was well aware of the correspondence exchanged via WhattsApp between the parties. In continuation, the player also provided recent WhattsApp messages apparently received during the investigation phase from an individual allegedly representing the club asking him to withdraw his claim.
21) In addition, the player referred to said WhattsApp conversations, and, mostly, to the submissions he sent to the club via the Football Federation of Turkmenistan (i.e. the default and termination notices) in order to justify that his notices were “validly served” to the club, in accordance with FIFA and CAS jurisprudence.
22) Finally, the player rejected the counterclaim in full and reiterated his position as described in his initial claim.
E. Position of the intervening party
23) In its comments on the claim, Club Nairobi City Stars FC (hereinafter: the intervening party stated or Nairobi) explained that it fully relied on the facts as presented in the player’s initial claim and comments on the counterclaim lodged by the club. In this respect, it deemed the counterclaim to be “devoid of merit” due to the justified termination of the employment contract by the player. Therefore, Nairobi having signed with the player after said justified termination and the club having failed to provide evidence of any inducement, the player’s new club deemed that the counterclaim should be fully dismissed.
F. Contractual situation of the player
24) The player indicated that, on 1 January 2020, he concluded an employment contract with Nairobi, valid as from the date of signature until 30 June 2021, as per which he would be entitled to a single payment of Kenyan Shilling (KES) 150,000 and a monthly salary of KES 60,000.
III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
A. Competence
25) 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 February 2020 and decided on 4 June 2020. Consequently, the 2019 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).
26) 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
27) Notwithstanding the above, the Chamber acknowledged that the club contested the competence of FIFA arguing – despite unclearly – that pursuant to clause 6 of the contract the Football Federation of Turkmenistan was the competent tribunal to enter into the substance of this matter.
28) 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 Football Federation of Turkmenistan. In this respect, the Chamber referred to the wording of clause 6 of the contract, which stipulates that: “This contract consists of 6 articles and prepared in 4 copies. In case of any dispute arising from this contract Turkmenistan Football Federation and FIFA regulations are applicable”.
29) Having analysed the aforementioned clause, the Chamber concluded that its wording is by no means clear and it rather indicates a choice of law, making reference also to the FIFA Regulations. Thus, clause 6 of the contract cannot be considered as a valid arbitration clause, stipulating the clear and exclusive jurisdiction of one specific deciding body of the Football Federation of Turkmenistan.
30) 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.
31) 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
32) 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 February 2020, the January 2020 edition of said regulations is applicable to the matter at hand as to the substance.
33) 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
34) 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
35) The Chamber wished to recall in this respect the main elements that gave rise to the present dispute.
36) In this respect, the Chamber noted that the player on the one hand claims to have terminated the employment contract on 4 December 2019 with just cause, after putting the club in default of several payments and for not arranging his visa and work permit. Thus, he deems to be entitled to receive from the club outstanding remuneration and compensation for breach of contract.
37) The club on the other hand seem to – unclearly – state that the contract was not valid and that it never received a default notice or a termination from the player. Thus, it lodges a counterclaim against him for breach of contract.
38) In view of the foregoing, the Chamber deemed that it first would have to address the issue of the validity of the contract and subsequently that of its unilateral termination by the player, assessing whether he had or not a just cause to do so.
II. Considerations
39) In this context, the Chamber wished to highlight 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. After careful study of the contract presented by the player, the Chamber concluded that all such essential elements are included, in particular, the fact that the contract establishes that the player has to render his services to the club, which in counterpart has to pay to the player a remuneration.
40) In spite of the fact that the main exchange of correspondence between the club and the player’s agents occurred via WhattsApp and that the legitimacy of such agents is contested by the club, all formalities required in the Transfer Matching System (TMS) have been duly fulfilled by the involved parties, all essentialia negotii are present and the contract is to be considered as valid and binding between the parties.
41) In view of the foregoing, the Chamber moved on to the analysis of the unilateral termination of the contract by the player on 4 December 2019.
42) At this point, the Chamber referred to art. 12 par. 3 of the Procedural Rules and noted that, contrary to the club’s objection, the player provided evidence that on 18 November 2019 he sent a default letter to the club, claiming it had never received his remuneration from the start of the contract, his visa or work permit, granting the club 15 day to remedy the default. The Chamber also pointed out that the club did not discharge its burden of proving the payment of the player’s remuneration and the issuance of his residence and work permits, or to have had a valid reason not to have done so.
43) 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”.
44) 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 4 December 2019 he terminated the contract with just cause, based on the non-payment of at least 4 monthly salaries and his sign-on fee.
45) Furthermore, the Chamber considered relevant to recall its jurisprudence in accordance with which the validity of an employment contract cannot be made conditional upon the execution of (administrative) formalities, such as, but not limited to, the issuance of a work of residence permit, which are of the sole responsibility of a club and on which a player has no influence.
46) As a result, the club is to be held liable for the early termination of the employment contact with just cause by the player.
47) 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.
48) 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 59,500, corresponding to USD 10,000 as 4 monthly salaries from August to November 2019 and USD 49,500 as the sign-on fee.
49) In addition, taking into consideration the player’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the amount of USD 10,000 as from 5 December 2019, as specifically requested by the player and on the amount of USD 49,500 as from 2 August 2019.
50) As to the player’s request for the reimbursement of flight tickets, the Chamber decided to reject it since no substantial evidence that this amount was in fact incurred by the player and not the club was provided.
51) 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.
52) 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.
53) 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.
54) 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 non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.
55) 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.
56) 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.e. 4 December 2019 until 30 June 2020 and concluded that the player would have received in total USD 17,500 as remuneration had the contract been executed until its expiry date. Consequently, the Chamber concluded that the amount of USD 17,500 serves as the basis for the determination of the amount of compensation for breach of contract.
57) 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.
58) The Chamber noted that on 1 January 2020, the player concluded a new employment contract with Nairobi, valid as from the date of signature until 30 June 2021, as a consequence of which he was able to mitigate his damages in the approximate amount of USD 3,600.
59) Subsequently, the Chamber referred to art. 17 par. 1 point ii. and established that, since the termination was due to overdue payables, the player should also be entitled to additional compensation in the amount of 3 monthly salaries, amounting in total to USD 7,500. As the sum of the mitigated compensation and the additional compensation would in fact exceed the residual amount of the contract, the Chamber stipulated that the player was entitled to receive compensation in the amount of USD 17,500, corresponding to the residual amount of the contract.
60) 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 February 2020 until the date of effective payment.
III. Conclusion
61) As a result of the aforementioned, the Chamber decided to partially accepted the claim of the player and that the club should pay the player the following amounts:
a) USD 59,500 as outstanding remuneration plus 5% interest p.a. until the date of effective payment as follows:
i) on the amount of USD 49,500, as from 2 August 2019;
ii) on the amount of USD 10,000, as from 5 December 2019.
b) USD 17,500 as compensation for breach of contract plus 5% interest p.a. as from 14 February 2020 until the date of effective payment.
62) The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing the claim of the player is admissible and partially accepted and that the counterclaim of the club is rejected.
IV. Legal Consequences
63) 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.
64) 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.
65) 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 / Counter-Respondent, Peter Odhiambo Opiyo, is admissible.
2) The claim of the Claimant / Counter-Respondent is partially accepted.
3) The Respondent / Counter-Claimant, FC Altyn Asyr, has to pay to the Claimant / Counter-Respondent, outstanding remuneration in the amount of USD 59,500 plus 5% interest p.a. until the date of effective payment as follows:
a) on the amount of USD 49,500, as from 2 August 2019;
b) on the amount of USD 10,000, as from 5 December 2019.
4) The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent, compensation for breach of contract in the amount of USD 17,500, plus 5% interest p.a. as from 14 February 2020 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 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 plus interest mentioned under points 3. and 4. above.
8) The Respondent / Counter-Claimant shall provide evidence of payment of the due amount in accordance with points 3. and 4. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated into one of the official FIFA languages (English, French, German, Spanish).
9) In the event that the amount due plus interest in accordance with points 3. and 4. above 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 point 9. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.
11) In the event that the amount due in accordance with points 3. and 4. above 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.
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