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 19 May 2020

Decision of the Dispute Resolution Chamber (DRC) judge

passed on 19 May 2020,

by

by Alexandra Gomez Bruinewoud (Uruguay & The Netherlands), DRC judge,

on the claim presented by the player,

Leyo Josephine Rita Akaffou, Ivory Coast,

represented by Mr Georgi Gradev

as Claimant

against the club,

Pyrgos Limassol FC, Cyprus

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 1 August 2019, the player Leyo Josephine Rita Akaffou (hereinafter: “the player” or “the Claimant”) and the club Pyrgos Limassol FC (hereinafter: “the club” or “the Respondent”) signed two documents an employment contract (hereinafter: “the contract”) and a standard contract valid as from 1 August 2019 until 31 May 2021.

2. According to the clause 1.3. of the contract, the player was entitled to a monthly gross salary amounting to EUR 862.56 or EUR 800 net.

3. According to the clause 1.5. of the contract the player was entitled to the following benefits and/or allowances:

a) Flights tickets from Abidjan to Cyprus and back when the season completed;

b) Accommodation and all transportations in Cyprus;

c) Salary will be paid on the first 10 days of each next month for the previous month by bank transfer of deposit;

d) All visa expenses will be paid by the club and

e) Medical insurance also full injuries insurance.

All taxes payable to the Tax Department, as per the applicable legislation, shall be paid by the Club.

4. Part I of the standard contract (“Disciplinary Procedure and Penalties”) provided, inter alia:

“3. Procedure

The following steps will be taken as appropriate in all cases of disciplinary action:

3.1. Investigation

No action will be taken before a proper investigation has been undertaken by the Club into the matter complained of. If the Club determines the same to be appropriate the Club may by written notice suspend the Player for up to fourteen days while the investigation takes place. If the Player is so suspended the Employment Agreement together with all the Player's rights under it including the payment of the Player's remuneration and benefits shall remain in force. However, during the period of suspension the Player will not be entitled to access to any of the Club's premises except at the prior request or with the prior consent of the Club and subject to such conditions as the Club may impose. The decision to suspend the Player will be notified in writing to the Player by the Club.

3.2. Disciplinary Hearing

3.2.1. If the Club decides to hold a disciplinary hearing about the matter complained of the Player will be given full details in writing of the complaint against him and reasonable notice of the date and time of the hearing. At the hearing the Player will be given an opportunity to state his case either personally or through his representative.

3.2.2. Subject as provided in paragraph 3.2.3 and provided that the Player so wishes or is considered as appropriate by the Club, no disciplinary penalty will be imposed without first giving the Player the opportunity to state his case to the coach or any other Club official.

3.2.3. A disciplinary hearing may proceed in the Player's absence and a disciplinary penalty may be imposed if he fails to appear at such hearing after having received proper notice thereof.

4. Disciplinary Penalties

4.1. At a disciplinary hearing or on an appeal against a disciplinary decision the Club may dismiss the allegation or if it is proved to the Club's satisfaction may impose the following sanctions:

4.1.1. Oral warning,

4.1.2. Written warning,

4.1.3. Final written warning after a previous warning or warnings,

4.1.4. Fine not exceeding the amount of the Player's basic wage for a period of up to two weeks for a first offence and up to four weeks for subsequent offences in any consecutive period of twelve months,

4.1.5. Training with the Second Team of the Club for a period of up to two weeks for a first offence and up to four weeks for subsequent offences in any consecutive period of twelve months,

4.1.6. Prohibition to attend at any of the Club's premises for such period as the Club thinks fit, not exceeding four weeks,

4.1.7. Termination of the Player’s employment, as per clause 9.1 of the Standard Employment Contract.

The above penalties may be imposed accumulatively. The severity of a penalty must not be

disproportional to the gravity of the offence.”

5. On 19 February 2020, the Claimant lodged the present claim for breach of the contract by the Respondent in front of FIFA requesting from the latter a compensation amounting to EUR 12,636.17 plus an annual interest of 5% as of date of claim and until the date of effective payment. Said amount is composed as follows:

 EUR 12,075.84 (EUR 862.56 x 14) as residual value of the contract (cf. clause 1.3 of the contract, 4 months from 1 February to 31 May 2020 and 10 months from 1 August 2020 until 31 May 2021) and

 EUR 560.33 to cover the damage of returning to her country (cf. clause 1.5 of the contract).

Moreover, the Claimant requested the imposition of sanctions to the Respondent in accordance with art. 17.4 of the RSTP taking into account that the contract was terminated during the protected period.

In the alternative, the Claimant requested FIFA to impose sanctions to the Respondent in accordance with art. 24bis of the RSTP.

6. The Claimant maintained, that on 12 January 2020, the Respondent´s was defeated by its main rival, Apollon Limassol by 6:0 losing the chance to become a champion of Cyprus in the 2019/2020 season. Subsequently, on 15 January 2020 the Respondent sent an email to the Claimant´s agent stating: “I would like to inform you that the board of Pyrgos FC after the last game take place at Sunday 12 of January and the behaviour of the above two players in the 90 minutes of the game and after the end of it, decide at first that the 2 players will be out of the team and that they don’t have place any more in the team. Coach will give them today training programmed for the 2 of them. They will be training with the 2nd team of the club. He will supervise the training of them at times and days different from the team’s schedule”.

7. On the same date, the Claimant via her players´ agent replied to the Respondent requesting further details since from said email was not clear “…what exactly happened in the match on January 12 for which you separate the players and make them train with the second team…”. The Claimant added that as of 15 January 2020, she was sent to train individually in violation to the part 1 of the standard contract without any prior warning.

8. Moreover, the Claimant stated that on 31 January 2020 requested the Respondent to reinstate her with the first team without success.

9. The Claimant further explained that on 3 February 2020 the Respondent sent a WhatsApp message to her agent offering the following termination offer: “1500 euro for the rest of their contracts and terminate their agreements immediately – Tickets to return to Ivory Coast.- And of course they will be paid the salary of January anyway (800 euro)…”. The Claimant rejected the offer.

10. The Claimant maintained that the Respondent suspended her from work in violation of her right to personality and due process and that the termination offer is a clear evidence that the Respondent was no longer interested in her services.

11. The Claimant added that on 13 February 2020 (one month after the match) the Respondent informed the Claimant that the board has decided to impose a fine of EUR 400 for her behaviour during the match of 12 January 2020 and offered again a compensation of EUR 1,500 to terminate the contract. The Claimant rejected the fine for groundless and claimed that her right to be heard was not respected. Parties continued interchanging several emails.

12. Finally on 18 February 2020, the Claimant informed the Respondent that it is clear that is refusing to perform its obligations and that the contract came to an end.

13. The Claimant deemed that “her exclusion form the team severely prejudiced her career development decreasing her market value and leaving her unemployed until the next registration period. Bearing in mind the Respondent attitude towards the Claimant, she could not reasonably be expected to carry on the employment relationship. For the same reasons, the Clamant did not see any more lenient measures which she could take to resolve the situation and to maintain the contractual relationship and for this reason she did not send any additional warning to the Respondent”.

14. Therefore, the Claimant concluded that had just cause to terminate the contract (cf. art. 14 of the RSTP) and the Respondent is to be held liable for the early termination of the contract.

15. Despite being requested to do so, the Respondent failed to provide its comments on the claim of the Claimant.

II. Considerations of the Dispute Resolution Chamber (DRC) judge

1. First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: “the DRC judge”) analyzed whether she was competent to deal with the case at hand. In this respect, she took note that the present matter was submitted to FIFA on 19 February 2020. 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 DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition March 2020) she is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Ivorian player and a Cypriot club.

3. Furthermore, the DRC judge analyzed which regulations should be applicable as to the substance of the matter. In this respect, she confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition March 2020), and considering that the present claim was lodged on 19 February 2020, the January 2020 edition of said regulations (hereinafter: “the Regulations”) is applicable to the matter at hand as to the substance.

4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. Subsequently, the DRC judge 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 DRC judge emphasized that in the following considerations he will refer only to the facts, arguments and documentary evidence, which she considered pertinent for the assessment of the matter at hand.

5. To start with, the DRC judge first observed that the Respondent did not submit its position to the claim lodged against it by the Claimant, despite having been asked to do so by FIFA. Therefore, the DRC judge concluded that, in this way, the Respondent had renounced to its right of defence and, thus, it had to be assumed that it had accepted the allegations of the Claimant.

6. Bearing in mind the aforementioned, the DRC judge referred to art. 9 par. 3 of the Procedural Rules and pointed out that in the present matter a decision shall be taken upon the allegations and documents submitted by the Claimant.

7. In continuation, the DRC judge acknowledged that the parties to the dispute had signed a valid employment contract and a standard contract on 1 August 2019 valid until 31 May 2021 and that, in principle, the relationship between the parties developed without problems until 12 January 2020, date in which the team lost the chance to become champion of the 2019/2020 sporting season in Cyprus.

8. The DRC judge further noted that according to the Claimant as from 15 January 2020 she was forced to train alone and prevented to join the first team.

9. What is more, the DRC judge acknowledged that on 19 February 2019, the Claimant lodged the present claim against the Respondent, claiming that on 18 February 2020 she terminated the contract with just cause and as a consequence the Respondent should be held liable to pay compensation for breach of contract.

10. At this stage, the DRC judge emphasised that it remains uncontested that the Claimant was ordered to train individually and that the Respondent asked the Claimant multiple times to terminate the contract.

11. In addition, the DRC judge observed that on 13 February 2020 the Respondent informed the Claimant that its board decided to impose a fine of EUR 400 for her behaviour during the match of 12 January 2020 and offering a compensation for an amount of EUR 1,500 to terminate the contract.

12. In this context, the DRC judge wished to address the fact that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a method to force termination of contracts.

13. Furthermore, the DRC judge took note of the player´s allegation that the relevant fine was imposed by the Respondent in violation of her right to be heard.

14. In view of the above, the DRC judge was of the opinion that based on the behaviour of the Respondent, the player could legitimately believe that the club was no longer interested in her services.

15. Consequently, on account of all the above and considering that, when the player terminated the contract, the club was no longer interested in her services, the DRC judge concluded that, on 18 February 2020, the player had a just cause to unilaterally terminate the employment contract as per art. 14 of the Regulations.

16. As a result, the DRC judge decided that the club is to be held liable for the early termination of the employment contract with just cause by the player.

17. Having established that the club is to be held liable for the early termination of the contract, the DRC judge focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC judge established that the player is entitled to receive from the club compensation for breach of contract, in addition to any outstanding payments on the basis of the contract.

18. Along those lines, the DRC judge first referred to the player’s request regarding the outstanding remuneration at the time of the unilateral termination of the contract. In this respect, the DRC judge concurred that the club must fulfil its obligations as per the contract in accordance with the general legal principle of “pacta sunt servanda”.

19. At this stage, the DRC judge reiterated that the Respondent did not present its position in the matter at stake.

20. The DRC judge noted that the Claimant requested a reimbursement of EUR 560.33 as cost of a flight ticket.

21. In this respect, the DRC judge deemed that taking into account that the contract expressly stipulated the obligation of the Respondent to pay the Claimant a flight ticket to return to her home country and that the Claimant provided evidence of payment in this regard, the DRC judge decided to grant EUR 560.33 in favour of the player.

22. In addition, taking into consideration the specific request of the player, the DRC judge decided to award the latter interest at the rate of 5% p.a. on the aforementioned amount as from 19 February 2020, which corresponds to the date of the present claim, until the date of effective payment.

23. Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the player is entitled to receive compensation for breach of contract from the club.

24. In continuation, the DRC judge focused its attention on the calculation of the amount of compensation for breach of contract due to the player by the club in the case at stake. In doing so, the DRC judge 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.

25. In application of the relevant provision, the DRC judge held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the DRC judge observed that the contract does not contain any such clause.

26. As a consequence, the DRC judge determined that the amount of compensation payable by the club to the player had to be assessed in application of the parameters set out in art. 17 par. 1 of the Regulations. Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the monies payable to the player under the terms of the contract as from its termination and concluded that the player would have been entitled to receive EUR 11,200 as net remuneration had the employment contract been executed until its regular expiry date, i.e. 31 May 2021.

27. For the sake of completeness, the DRC judge underlined that in accordance with the contract, the applicable taxes should be paid by the Respondent. Therefore, the DRC judge stated that the compensation in favour of the Claimant should be calculated taking into account net amounts.

28. Consequently, the DRC judge concluded that the amount of EUR 11,200 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

29. In continuation, the DRC judge 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.

30. In respect of the above, the DRC judge noted, that the player informed not having signed a new employment contract after 18 February 2020 and therefore had not been able to mitigate her damages. Therefore, no further deductions should be made to the amount of EUR 11,200, in accordance with art. 17 par. 1 lit. i) of the Regulations.

31. Consequently, on account of the above-mentioned considerations, the DRC judge decided to partially accept the Claimant’s claim and held that the Respondent must pay the amount of EUR 11,200 as compensation for breach of contract to the Claimant, which is considered by the DRC judge to be a fair and reasonable amount.

32. In addition, taking into account the Claimant´s request and the well-established jurisprudence of the Dispute Resolution Chamber in this respect, the DRC judge decided that the Respondent shall pay 5% interest p.a. on the amount of EUR 11,200 as from date of claim, i.e. 19 February 2020 until the date of effective payment.

33. Furthermore, taking into account the consideration under point II./3. above, the DRC judge 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.

34. In this regard, the DRC judge 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.

35. Therefore, bearing in mind the above, the DRC judge 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.

36. Finally, the DRC judge 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.

37. The DRC judge concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected.

III. Decision of the Dispute Resolution Chamber (DRC) Judge

1. The claim of the Claimant, Leyo Josephine Rita Akaffou, is partially accepted.

2. The Respondent, Pyrgos Limassol FC, has to pay to the Claimant outstanding remuneration in the amount of EUR 560.33 plus 5% interest p.a. as from 19 February 2020 until the date of effective payment.

3. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of EUR 11,200 plus 5% interest p.a. on said amount as from 19 February 2020 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 2 and 3 above.

6. The Respondent shall provide evidence of payment of the due amounts plus interest in accordance with points 2 and 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 plus interest in accordance with points 2 and 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 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 sum plus interest 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 FIFA’s Disciplinary Committee for consideration and a formal decision.

*****

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 motivated decision (legal remedy):

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 (cf. point 4 of the directives).

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 DRC Judge:

Emilio García Silvero

Chief Legal & Compliance Officer