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 9 April 2020
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 9 April 2020,
in the following composition:
Geoff Thompson (England), Chairman
Daan de Jong (The Netherlands), member
Roy Vermeer (The Netherlands), member
on the claim presented by the player,
Donou Liasidji, Togo,
represented by Mr Slim Boulasnem
as Claimant
against the club,
Al Merreikh SC, Sudan
as Respondent
regarding an employment-related dispute
between the parties
I. Facts of the case
1. On 21 May 2018, the Sudanese club, Al Merreikh SC (hereinafter: the Respondent or the
club), and the Togolese player, Donou Kokou Liasidji (hereinafter: the Claimant or the
player), concluded an employment contract (hereinafter: the contract), valid as from the
date of signature until 30 November 2020.
2. According to clause 5.1 of the contract, the Respondent undertook to pay to the
Claimant the amount of USD 15,000, as follows:
a) USD 5,000 as a signing-on fee;
b) USD 5,000 in December 2018;
c) USD 5,000 in June 2019.
3. Moreover, pursuant to clause 5.2 of the contract, the Respondent also committed itself
to pay to the Claimant a monthly remuneration in the amount of USD 1,500.
4. Pursuant to clause 5 of the contract, the club further undertook to provide the player
with “accommodation”, “transportation” and “one air ticket from his Country to
Khartoum and back”.
5. On 28 August 2019, the Claimant put the Respondent in default of payment of the
amount of USD 35,100 as outstanding remuneration, claiming that he had only received
USD 2,400 since the beginning of the employment relationship. Having said this, the
Claimant granted a 10 days’ deadline to remedy the default.
6. The Claimant asserted that, since no payment was made, he unilaterally terminated the
contract with just cause on 16 September 2019.
7. On 16 September 2019, subsequently amended on 24 and 28 October 2019, the Claimant
lodged a claim in front of FIFA against the Respondent for breach of contract,
requesting the total amount of USD 41,100, broken down as follows:
a) USD 12,600 plus 5% interest p.a. as from the due dates, as the remainder of the
amounts stipulated under the provision of clause 5.1. of the contract (cf. point 2.
above);
b) USD 25,500 plus 5% interest p.a. as from the due dates, corresponding to unpaid
salaries for the period between May 2018 and September 2019 (i.e. 17 monthly
salaries of USD 1,500 each);
c) USD 3,000 plus 5% interest p.a. as from the due dates, for compensation for
breach of contract, corresponding to the remaining value of the contract as from
October 2019 until and including November 2019.
8. In reply to the claim, the Respondent maintained that, on 19 August 2018, the
employment contract was mutually terminated by the parties and that the amount of
USD 8,000 was paid to the player. In support of its statements, the Respondent provided a copy of a document named “Termination of contract agreement” (hereinafter: the
termination agreement), according to which the parties allegedly agreed to terminate
the employment relationship and the player acknowledged having received the amount
of USD 8,000. Furthermore, pursuant to point 2 of the termination agreement, the
player allegedly confirmed not having any “further claim [whatsoever] from [the
Respondent]”.
9. In response, the Claimant maintained that he never signed a termination agreement
with the Respondent and insisted that his signature featuring on the copy of the
document provided by the Respondent was forged.
10. In view of the above, FIFA’s administration requested to be provided with the original
version of the termination agreement. Despite being invited to do so, the Respondent
failed to provide the original copy of the termination agreement dated 19 August 2018.
11. According to the Transfer Matching System (hereinafter: the TMS), the player did not
conclude an employment contract with another club during the relevant period of time.
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the case at hand. In this respect, it
referred to 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) as well as to the fact that the present matter was
submitted to FIFA on 16 September 2019 and decided on 9 April 2020. Therefore, the
DRC concluded that the 2019 edition of the Procedural Rules is applicable to the matter
at hand.
2. Furthermore, the DRC 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 16 September 2019, the June 2019 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
3. With regard to the competence of the DRC, art. 3 of the Procedural Rules states that
the DRC shall examine its jurisdiction in the light of art. 22 to 24 of the Regulations. In
accordance with art. 24 par. 1 and par. 2 lit. i. in combination with art. 22 lit. b) of the
aforementioned Regulations, 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 Togolese player and a Sudanese club.
4. The competence of the DRC and the applicable regulations having been established,
the DRC entered into the substance of the matter. In this respect, the DRC started
by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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.
5. First of all, the DRC acknowledged that the parties entered into an employment
contract valid as from 21 May 2018 until 30 November 2020, according to which the
Claimant was inter alia entitled to receive a monthly salary of USD 1,500, as well as the
amount of USD 15,000, payable as follows: (i) USD 5,000 as a signing-on fee; (ii) USD
5,000 in December 2018; and (iii) USD 5,000 in June 2019 (cf. point I.2. above).
6. The Chamber further took note of the fact that, on 28 August 2019, the Claimant put
the Respondent in default of USD 35,100, setting a 10 days’ deadline to remedy the
situation.
7. In continuation, the DRC recalled that, on 16 September 2019, the Claimant terminated
the employment relationship.
8. In this regard, the Chamber observed that the Claimant lodged a claim in front of FIFA
against the Respondent seeking payment of the amount of USD 41,100, corresponding
to salaries due under the employment contract. As regards the termination letter dated
16 September 2019, the DRC observed that the Claimant maintained having just cause
to terminate the employment contract, as the Respondent had failed to comply with its
financial obligations towards the player and that, therefore, the Respondent was to be
held liable for the early termination of the employment contract.
9. Subsequently, the members of the Chamber noted that the Respondent, in its defence,
provided a document according to which, on 19 August 2018, the parties had allegedly
agreed to terminate de employment relationship. As per the Respondent, by means of
the termination agreement, the player allegedly acknowledged having received the
amount of USD 8,000 in cash and waived his right to claim any further monies from the
Respondent.
10. In relation to the termination agreement, the members of the Chamber took note of
the fact that the Claimant categorically denied the conclusion of any agreement with
the Respondent, sustaining that said document had been forged.
11. In this respect, the DRC considered it appropriate to remark that, as a general rule,
FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such
as the ones related to the possible forgery of a document, and that such affairs fall into
the jurisdiction of the competent national criminal authority.
12. Notwithstanding the above, the members of the DRC understood that it had to be
established, beyond doubt, by documentary evidence, that the parties indeed agreed to
terminate the employment relationship as apparently stated in their alleged
termination agreement dated 19 August 2018.
13. In view of the aforementioned, the members of the Chamber firstly referred to art. 12
par. 3 of the Procedural Rules, according to which any party claiming a right on the
basis of an alleged fact shall carry the respective burden of proof. The application of
the said principle in the present matter led the members of the Chamber to conclude
that it was up to the Respondent to prove the validity of the documentary evidence
submitted.
14. Having stated the above, the DRC observed that, despite being invited to do so, the
Respondent was unable to provide the relevant document in its original form. On
account of these considerations, the Chamber held that the fact the Respondent had
only submitted a copy of the disputed termination agreement was insufficient, given
the circumstances of the case, to establish the authenticity of the document dated 19
August 2018.
15. On account of all of the above considerations, the Chamber decided to reject the
arguments put forward by the Respondent in its defence and established that the
Respondent had seriously failed to comply with its contractual obligations. As a
consequence of the aforementioned consideration, the members of the Chamber
concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, a decision shall
be taken upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
16. In view of the considerations under points II.14. and II.15., the Chamber established that
the Respondent, without any valid reason, failed to remit the Claimant’s salaries, until
16 September 2019, date on which the Claimant terminated the contract. Consequently,
and considering that the Respondent had repeatedly and for a significant period of
time been in breach of its contractual obligations towards the Claimant, the Chamber
decided that the Claimant had just cause to unilaterally terminate the employment
contract on 16 September 2019 and that, as a result, the Respondent is to be held liable
for the early termination of the employment contract with just cause by the Claimant.
17. In view of all the above, the DRC decided that, in accordance with the general legal
principle of pacta sunt servanda, the Respondent must fulfil its contractual obligations
towards the Claimant and is to be held liable to pay to the Claimant the amount of USD
35,632, corresponding to the following:
a) USD 2,600, as the remainder of the signing-on fee stipulated under clause 5.1. a)
of the contract;
b) USD 532, corresponding to eleven (11) days of the monthly salary for May 2018;
c) USD 22,500, corresponding to the monthly salaries as from June 2018 until and
including August 2019 (i.e. 15 monthly salaries of USD 1,500 each);
d) USD 10,000, corresponding to the two instalments stipulated under par. b) and
c) of clause 5.1 the contract.
18. In addition, taking into account the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber, the DRC decided that the Respondent must pay to the Claimant interest of 5% p.a. on the outstanding amounts as from the respective
due dates until the date of effective payment.
19. In continuation, having established that the Respondent is to be held liable for the
early termination of the employment contract with just cause by the Claimant, the
Chamber focused its attention on the consequences of such termination. In this regard,
the members of the Chamber determined that the Respondent was not only to pay the
amount of USD 35,632 as outstanding remuneration to the Claimant, but also to pay
compensation for breach of contract in accordance with art. 17 par. 1 of the
Regulations.
20. In this context, the Chamber focused its attention on the calculation of the amount of
compensation for breach of contract 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 Claimant 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.
21. In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains 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.
22. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant 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. Therefore, other objective criteria may be taken into account at the discretion
of the deciding body.
23. 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 Claimant, i.e. 16 September 2019, until the
original date of expiry, i.e. 30 November 2020, and concluded that the Claimant would
have received in total USD 22,500 as remuneration had the contract been executed until
its expiry date. However, the Chamber took note of the fact that the Claimant had
limited his request to the total amount of USD 41,100. Consequently, in light of the
Claimant’s request, and having deducted the amount of USD 35,632 of outstanding
remuneration, the members of the Chamber concluded that the amount of USD 5,468 serves as the basis for the final determination of the amount of compensation for
breach of contract in the case at hand.
24. In continuation, the Chamber verified as to whether the Claimant 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. 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
breach of contract in connection with the player’s general obligation to mitigate his
damages.
25. In this regard, the members of the Chamber noted that the Claimant had not signed
any new employment contract within the period of time between the termination of
the contract and its original date of expiry and, thus, had not been able to mitigate
damages.
26. Consequently, on account of all of the above-mentioned considerations, the Chamber
decided that the Respondent must pay to the Claimant the amount of USD 5,468 as
compensation for breach of contract in the case at hand.
27. In addition, taking into account the Claimant’s request, the Chamber decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of
compensation as from the date on which the claim was lodged, i.e. 16 September 2019,
until the date of effective payment.
28. The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
29. Furthermore, 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 compensation for breach of
contract in due time.
30. 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.
31. 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, following the notification of the present decision,
communicates the relevant bank details to the Respondent, 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.
32. Finally, the Chamber recalled that the above-mentioned ban will be lifted immediately
and prior to its complete serving upon payment of the due amounts, in accordance with
art. 24bis par. 3 of the Regulations.
*****
III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Dounou Liasidji, is partially accepted.
2. The Respondent, Al Merreik SC, has to pay to the Claimant outstanding
remuneration in the amount of USD 35,632, plus 5% interest p.a. until the effective
date of payment as follows:
- on the amount of USD 2,600, as from 31 May 2018 until the date of effective
payment;
- on the amount of USD 532, as from 1 June 2018 until the date of effective
payment;
- on the amount of USD 1,500 as from 1 July 2018 until the date of effective
payment;
- on the amount of USD 1,500 as from 1 August 2018 until the date of effective
payment;
- on the amount of USD 1,500 as from 1 September 2018 until the date of
effective payment;
- on the amount of USD 1,500 as from 1 October 2018 until the date of effective
payment;
- on the amount of USD 1,500 as from 1 November 2018 until the date of
effective payment;
- on the amount of USD 1,500 as from 1 December 2018 until the date of
effective payment;
- on the amount of USD 6,500, as from 1 January 2019 until the date of effective
payment;
- on the amount of USD 1,500 as from 1 February 2019 until the date of effective
payment;
- on the amount of USD 1,500 as from 1 March 2019 until the date of effective
payment;
- on the amount of USD 1,500 as from 1 April 2019 until the date of effective
payment;
- on the amount of USD 1,500 as from 1 May 2019 until the date of effective
payment;
- on the amount of USD 1,500 as from 1 June 2019 until the date of effective
payment;
- on the amount of USD 6,500, as from 1 July 2019 until the date of effective
payment;
- on the amount of USD 1,500, as from 1 August 2019 until the date of effective
payment;
- on the amount of USD 1,500 as from 1 September 2019 until the date of
effective payment.
3. The Respondent has to pay to the Claimant compensation in the amount of USD
5,468 plus interest of 5% p.a. as from 16 September 2019 until the date of effective
payment.
4. Any further claim lodged by the Claimant is rejected.
5. The Claimant is directed to inform the Respondent, 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 must pay the
amounts mentioned under points III.2. and III.3. above.
6. The Respondent shall provide evidence of payment of the due amounts in
accordance with points III.2. and III.3. above 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).
7. In the event that the amounts due in accordance with points III.2. and III.3. above are
not paid by the Respondent within 45 days as from the notification by the
Claimant of the relevant bank details to the Respondent, the Respondent 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).
8. The ban mentioned in point III.7. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
9. In the event that the aforementioned sums 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.
*****
Note related to the publication:
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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 motivated decision (legal remedy):
According to article 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
Avenue de Beaumont 2
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