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 17 January 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 17 January 2020,

in the following composition:

Omar Ongaro (Italy), Deputy Chairman

Stefano Sartori (Italy), member

José Luis Andrade (Portugal), member

on the claim presented by the player,

Daho Guillaume Nicaise Horey, Ivory Coast

represented by Mr Jonas Vallina

as Claimant

against the club,

Alahly Benghazi SC, Libya

represented by Mr Tarek Alaimi

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On an unknown date, the Ivorian player, Guillaume Nicaise Horey (hereinafter: the Claimant or the player), and the Libyan club, Al Ahly Benghazi (hereinafter: the Respondent or the club) (hereinafter jointly referred to as the parties), concluded an employment contract (hereinafter: the contract) valid as from 1 July 2018 until 30 June 2021.

2. Article 5 of the contract provided “a financial payment for [the player]’s commitment to this contract an amount of ($400.000) Four hundred thousand US Dollar”.

3. In accordance with article 6 of the contract, the following payment method was agreed:

4. Moreover, article 11 of the contract mentioned the following:

5. Finally, article 15 of the contract further mentioned that :

6. On 1 September 2019, the player put the club in default of payment of the total amount of USD 119,000, corresponding to the instalments of January and June 2019 for the first season, as well as to the instalment of August 2019 for the second season, setting a 15 days’ deadline to the club in order to remedy the default prior to termination of the contract.

7. On 22 September 2019, the player unilaterally terminated the contract deeming to have just cause due to the failed reaction of the club to the player’s default served previously.

8. On 25 September 2019, the player lodged a claim against the club in front of FIFA, requesting it to pay him outstanding remuneration and compensation for breach of contract, as follows:

i. Outstanding remuneration:

- USD 40,000 as the installment for January 2019;

- USD 40,000 as the installment for June 2019;

- USD 39,000 as the installment for August 2019;

- USD 7,150 as 22 worked days, as from 1 September until 22 September 2019.

ii. Compensation for breach of contract:

- USD 83,850 for the second season;

- USD 150,000 for the third season.

The player further requested interest at a rate of 5% p.a. over the outstanding amounts only as from the due dates as well as ”costs fees imposition to [the club]”.

9. In his claim, the player explained that he duly had been paid the amount of USD 40,000 due by July 2018, allegedly paid on 6 March 2019, corresponding to the first installment due as per article 6 of the contract, as well as an amount of USD 10,000 in August 2019 corresponding to “some bonuses and benefits due in his contract”.

10. Moreover, the player argued that “due the critical situation economically and human”, he had no other choice than to serve his default notice in accordance with article 14bis of the RSTP.

11. As a consequence of the absence of reaction of the club, the player deemed that he had no other choice than to terminate the contract deeming to have just cause.

12. In its reply to the claim, the club contested FIFA’s competence deeming that the Libyan Football Federation should be competent to adjudicate the present as to the substance.

13. In this respect, the club referred to article 15 of the contract and sustained that the player did not respect the content of the clause by not trying to solve the dispute amicably and by not lodging his claim in front of the competent court, i.e. the Dispute Resolution Chamber of the Libyan Football Federation.

14. As to the substance, the club held that the player’s request as to the outstanding remuneration was wrong as the amounts claimed should be reduced due to the following reasons : the amount of USD 80,000 should be reduced due to disciplinary sanctions applied to the player, and the amount of USD 39,000 should be reduced as well due to the fact that the player admitted himself that he acknowledged a payment of USD 10,000 in August 2019.

15. Moreover, the club deemed that the player’s default notice was not accurate as the club offered the player to be paid the amount of USD 119,000 “by bank transfer to a reliable national or international personal bank address”, which the player allegedly refused.

16. In this respect, the club deemed that it had no debts towards the player and that its default and termination notices were invalid.

17. As a consequence, the club deemed that the player’s claim should be rejected entirely in case FIFA would be competent in the present matter.

18. Furthermore, in an unsolicited correspondence the club provided two untranslated letters allegedly acknowledging the receipt by the player of the amounts of USD 40,000 and USD 12,000. In addition, the club also provided two letters in French language allegedly referring to a warning sent by the club to the player due to his absence and his reply thereto explaining his conditions to obey to the club’s request.

19. Finally, upon being asked by FIFA, the player sustained that he remained unemployed as from 22 September 2019.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 25 September 2019. Consequently, the 2018 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).

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 (edition 2020) the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player that have an international dimension.

3. As a consequence, the Dispute Resolution Chamber would, in principle, be competent to decide on the present litigation which involves an Ivorian player and a Libyan club regarding an employment-related dispute.

4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of art. 15 of the contract alleging that the competent body to deal with any dispute deriving from the relevant employment contract is the Libyan Football Federation, i.e. the Dispute Resolution Chamber of the Libyan Football Federation (hereinafter: the NDRC of the LFF).

5. On the other hand, the Chamber noted that the Claimant referred to the competence of the FIFA DRC to adjudicate in and on the claim lodged by him against the Respondent.

6. Taking into account all the above, the Chamber emphasised that in accordance with art. 22 lit. b) of the 2020 edition of the Regulations on the Status and Transfer of Players it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the members of the Chamber referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

7. In relation to the above, the Chamber also deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the DRC is competent to settle an employment-related dispute between a club and a player of an international dimension, is that the jurisdiction of the relevant national arbitration tribunal or national court derives from a clear reference in the employment contract.

8. Therefore, while analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute contained a clear jurisdiction clause.

9. In this respect, the Chamber recalled that art. 15 the contract stipulates that: “The disputes that arise between the parties shall be solved through amicable solutions, and if that fails, the dispute shall be settled by the Libyan football federation or the International Federation of Football (FIFA)”.

10. Having examined the relevant provision, the Chamber came to the unanimous conclusion that art. 15 does not constitute a clear and exclusive jurisdiction clause in favour of the NDRC of the LFF, since it referred to “the Libyan football federation or the International Federation of Football (FIFA)”.

11. In this respect, the Chamber emphasised that said provision clearly makes a reference to FIFA, i.e. the FIFA DRC, as a competent body to settle the dispute in the matter at stake.

12. On account of all the above, the Chamber established that the Respondent’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.

13. In continuation, the Chamber analyzed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2020) and, on the other hand, to the fact that the present claim was lodged on 25 September 2019. Therefore, the Dispute Resolution Chamber concluded that the June 2019 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

14. The competence of the Chamber and the applicable regulations having been established, and entering into the substance of the matter, the Chamber continued by acknowledging the above-mentioned facts as well as the documentation contained in the file. 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.

15. First of all, the members of the Chamber recalled that, on an unknown date, the parties concluded an employment contract, valid as of 1 July 2018 until 30 June 2021, according to which the Claimant, inter alia, was entitled to an amount of USD 120,000 for the first year, USD 130,000 for the second year and USD 150,000 for the third year, all amounts divided in three specific instalments for each relevant year, as provided in the contract.

16. In continuation, the DRC noted that the Claimant lodged a claim against the Respondent maintaining that he terminated the contract on 22 September 2019 deeming to have just cause since, after having duly put the club in default, it had failed to pay him the instalments of January and June 2019 for the first season, as well as the instalment of August 2019 for the second season. Consequently, the Claimant asks to be awarded his outstanding dues as well as the payment of compensation for breach of the employment contract.

17. In addition, the DRC took note that the Claimant acknowledged having been paid by the Respondent, the amount of USD 40,000 due by July 2018, albeit late, as well as the amount of USD 10,000 in August 2019, corresponding to “some bonuses and benefits due in his contract”.

18. Subsequently, the DRC observed that, for its part and as to the substance, the Respondent held that the amount of USD 80,000 should be reduced due to the imposition of alleged disciplinary sanctions on the Claimant, as well as the amount of USD 39,000, due to the fact that the Claimant himself acknowledged having received a payment amounting to USD 10,000 in August 2019. In addition, the Chamber also noted that the Respondent disputed the accuracy of the Claimant’s default as it sustained having offered to pay him USD 119,000, however to no avail, as allegedly refused by the Claimant.

19. Moreover, the Chamber took note as well that the Respondent submitted further evidence as to alleged proofs of payment and further documentation related to the alleged disciplinary proceedings, however partially untranslated and in an unsolicited correspondence dated 11 December 2019, i.e. after the closure of investigation on 6 December 2019. Therefore, bearing in mind the Chamber’s constant jurisprudence in this regard and in application of art. 9 par. 3 and par. 4 of the Procedural Rules, the Chamber decided not to take into account said correspondence of the Respondent and established that, in accordance with the aforementioned provision, it shall take a decision on the basis of those documents on file that were provided prior to the deadline set by FIFA, in casu, on the statements and documents presented by the Claimant and the Respondent during the investigation phase.

20. Having said this, the DRC acknowledged that the central issue in the matter at stake was to determine as to whether the contract was in fact terminated by the Claimant, whether he had just cause for said termination and to decide on the consequences thereof.

21. With the above in mind, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

22. In doing so, the DRC recalled that, on 1 September 2019, the Claimant put the Respondent in default for the non-payment of the instalments of January and June 2019, for the first season, as well as the instalment of August 2019, for the second season, corresponding to an amount of USD 119,000, and set a 15 days’ deadline to the club in order to remedy the default prior to termination of the contract.

23. In this respect, the Chamber underlined that, to the contrary of what sustained by the Respondent as to the alleged disciplinary sanctions imposed on the Claimant, no evidence has been provided in support of said allegations. As such, the Chamber deemed that this argument had to be rejected. In addition, the Chamber noticed as well that the Respondent failed to provide any evidence as to its alleged offer made to the Claimant to pay an amount of USD 119,000, and, as for the previous argument, the Chamber rejected this argument.

24. Finally, the Chamber underlined the payment of USD 10,000 made and recalled by the Respondent and duly acknowledged by the Claimant.

25. As a consequence, the Chamber concluded that the Respondent failed to remit any remuneration in respect of the aforementioned default, and therefore established that the Respondent, without any valid reason, failed to remit to the Claimant the remuneration totalling USD 109,000, corresponding to the instalments of January 2019, June 2019 and August 2019 - minus the amount of USD 10,000 as acknowledged by the Claimant.

26. Consequently, the DRC referred to art. 14bis par. 1 of the Regulations, which, inter alia, stipulates that, in case a club unlawfully fails to pay a player at least two monthly salaries on their due dates, the player will be deemed to have had a just cause to terminate his contract, provided that he has put the debtor club in default in writing and has granted it a deadline of at least 15 days to fully comply with its financial obligations.

27. In this respect, on account of the above and considering that, when the player terminated the contract, at least two monthly salaries, on a pro-rata basis, were due despite the fact that the Claimant provided the Respondent with 15 days to remedy the default, the DRC concluded that, on 22 September 2019, the Claimant had a just cause to unilaterally terminate the employment contract.

28. Subsequently, prior to establishing the consequences of the termination of the employment contract with just cause by the Claimant on 22 September 2019, in accordance with art. 17 par. 1 of the Regulations, the Chamber held that it, in general, had to address the issue of unpaid remuneration at the moment when the contract was terminated by the Claimant.

29. As established above (cf. point II.25.), and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the club is liable to pay to the player the amount of USD 109,000 as outstanding remuneration, the instalments of January 2019, June 2019 and August 2019 - minus the amount of USD 10,000. The Chamber deemed that the amount requested by the Claimant pertaining to 22 days of his salary for the month of September 2019 should be part of the compensation due to him.

30. In addition, taking into consideration the player’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. as of the respective due dates, until the date of effective payment.

31. Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive compensation for breach of contract from the Respondent.

32. In continuation, 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.

33. 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.

34. 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. In this regard, the Dispute Resolution Chamber emphasised beforehand that each request for compensation for contractual breach has to be assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of the respective matter.

35. The Chamber then turned its attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation.

36. 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 the date of termination with just cause by the Claimant until its natural expiration, bearing in mind that he would have received in total USD 241,000 as remuneration for the period as from September 2019 until 30 June 2021. This amount consists of the 22 days of salary for the month of September 2019, originally requested as outstanding remuneration, i.e. USD 7,150, plus the remaining amounts due until the end of the contract, i.e. USD 83,850 for the second season and USD 150,000 for the third season. Consequently, the Chamber concluded that the amount of USD 241,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

37. 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.

38. The Chamber recalled that, after termination of the contract, the Claimant was not able to mitigate his damages, as he remained unemployed.

39. Consequently, on account of the above-mentioned considerations, the Chamber decided to partially accept the Claimant’s claim and that the Respondent must pay the amount of USD 241,000 as compensation for breach of contract to the Claimant, which is considered by the Chamber to be a fair and reasonable amount.

40. The DRC concluded its deliberations by rejecting any further claim of the Claimant.

41. Furthermore, taking into account the consideration under number II./13. 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.

42. In this regard, the Chamber established that, in virtue of the aforementioned provision, it has competence to impose a sanction on the Respondent. 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.

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

44. 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.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Daho Guillaume Nicaise Horey, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, Alahly Benghazi SC, has to pay to the Claimant outstanding remuneration in the amount of USD 109,000, plus interest at the rate of 5% p.a. until the date of effective payment, as follows :

i. as from 1 February 2019 on the amount of USD 40,000;

ii. as from 1 July 2019 on the amount of USD 40,000;

iii. as from 1 September 2019 on the amount of USD 29,000.

4. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of USD 241,000.

5. Any further claim lodged by the Claimant is rejected.

6. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail addresses as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts plus interest mentioned under point 3 and 4 above.

7. The Respondent shall provide evidence of payment of the due amounts plus interest in accordance with point 3 and 4 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).

8. In the event that the amounts due plus interest in accordance with point 3 and 4 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 plus interest 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).

9. The ban mentioned in point 8 above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

10. 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 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). 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

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer