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 8 May 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 8 May 2020,

in the following composition:

Clifford Hendel (USA/France), Deputy Chairman

Alexandra Gómez Bruinewoud (Uruguay/Netherlands), member

Stefano La Porta (Italy), member

on the claim presented by the player,

Dossa Momade Omar Hassamo Junior, Portugal,

represented by Mr Sami Dinc

as Claimant

against the club,

AEL Limassol, Cyprus,

represented by Mr Christoforos Florou

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 9 August 2016, the Portuguese player, Dossa Momade Omar Hassamo Junior (hereinafter: the Claimant or the player) and the Cypriot club, AEL Limassol (hereinafter: the Respondent or the club) signed an employment contract.

2. On 28 May 2019, the parties signed a “Protocol” (hereinafter: the protocol), stipulating the payment of the Claimant’s entitlement based on the employment contract dated 9 August 2016.

3. In accordance with the protocol, the club undertook to pay to the player the total amount of EUR 65,000 in 10 equal monthly installments of EUR 6,500 each, the first of which was due on 31 August 2019. Furthermore, the parties agreed on an “acceleration clause”, according to which a default in payment by the club would automatically and immediately render all the remaining installments payable to the player.

4. On the same date, i.e. 28 May 2019, the parties signed another employment contract valid as of 1 June 2019 until 31 May 2021 (hereinafter: the contract).

5. In accordance with the contract, the club undertook to pay to the player a salary of EUR 10,000 net per month.

6. On 29 May 2019, the parties signed an additional employment agreement, establishing further financial benefits payable to the player by the club (hereinafter: the addendum).

7. Pursuant to the addendum, the player was entitled to the following:

a. A bonus of EUR 25,000 net if the club won the Cypriot league;

b. A bonus of EUR 15,000 net if the club won the Cypriot cup; or

c. A bonus of EUR 15,000 net if the club qualified for European competitions the following season;

d. One return plane ticket for the player, his wife and child;

e. A car, to be returned by the contract’s expiration.

8. On 7 November 2019, the Claimant put the Respondent in default and requested the payment of EUR 78,500, based on the outstanding amounts from the protocol, i.e. EUR 58,500, and from the contract, i.e. his salaries of September and October 2019 in the total amount of EUR 20,000, setting a time limit of 15 days in order to remedy the default, to no avail.

9. On 24 November 2019, the Claimant terminated the contract in writing with immediate effect. Two days after his termination notice, on 26 November 2019, the Claimant acknowledged a payment of EUR 26,500 by the club.

10. On 25 December 2019, the Claimant lodged a claim in front of FIFA, seeking payment of his outstanding remuneration and compensation for breach of contract.

11. According to the Claimant, the Respondent did not fulfil its obligations as established in the protocol, hence all instalment became immediately due in line with the “acceleration clause”. Moreover, the Claimant maintains that his salaries of September 2019 and October 2019 were not paid. Consequently, according to the Claimant, he terminated the contract with just cause and is therefore entitled to a compensation in the amount of the residual value of the contract, as well his outstanding remuneration.

12. The Claimant maintains that by the date of his termination, the partial salary of November 2019, i.e. EUR 7,742, became due. According to the Claimant, the Respondent owes him outstanding remuneration in the amount of EUR 59,742.

13. With regards to compensation for breach of contract, the Claimant requests the remaining salaries in the amount of EUR 162,258. What is more, he requests the additional bonuses in the amount of EUR 40,000. At last, the Claimant asks for the additional compensation of six salaries, i.e. EUR 60,000.

14. On 21 January 2020, FIFA invited the Respondent to provide it with its position on the matter until 10 February 2020.

15. On 10 February 2020, the Respondent filed an unsubstantiated request for a deadline extension.

16. On 11 February 2020, FIFA both (a) informed the Respondent that it could not grant the requested deadline extension and (b) closed the investigation-phase of the matter. On the same date, the Respondent filed a new (parallel) claim against the Claimant, regarding the same facts and contracts on the basis of the present dispute.

17. On 12 February 2020, FIFA informed the Respondent that on the basis of art. 9 par. 3 and 4 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber, its late counterclaim could not be taken into account.

18. On 14 February 2020, the Respondent filed an unsolicited statement of defence and counterclaim on the matter at hand.

19. On 18 February 2020, FIFA informed the Respondent that it would be up to the Dispute Resolution Chamber to decide on the admissibility of the Respondent’s submissions.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 25 December 2019. Taking into account the wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition January 2020), 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 Portuguese player and a Cypriot club.

3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition January 2020), and considering that the present claim was lodged on 4 July 2019, the June 2019 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and documentation on file. 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. By doing so, the Chamber firstly recalled that the parties had signed the protocol, according to which the club undertook to pay to the player the total amount of EUR 65,000 in 10 equal monthly installments of EUR 6,500 each, the first of which was due on 31 August 2019. Furthermore, the DRC observed that the parties agreed on an “acceleration clause”, according to which a default in payment by the club would automatically render all the remaining installments immediately payable to the player.

6. Additionally, the Chamber took due note of the fact that the parties had also signed the contract, pursuant to which the club undertook to pay to the player a monthly salary of EUR 10,000 net as from 31 August 2019 until 31 May 2021.

7. Lastly, the members of the Chamber observed that the parties additionally had signed the addendum, pursuant to which the player was entitled to the following:

a. A bonus of EUR 25,000 net if the club won the Cypriot league;

b. A bonus of EUR 15,000 net if the club won the Cypriot cup; or

c. A bonus of EUR 15,000 net if the club qualified for European competitions the following season;

d. One return plane ticket for the player, his wife and child;

e. A car, to be returned by the contract’s expiration.

8. In continuation, the members of the Chamber took into account that, on 24 November 2019, the player notified the club of the termination of the contract on the basis of outstanding remuneration, which according to the player amounted to EUR 59,742.

9. With regards to the Respondent’s position, the DRC noted that on 21 January 2020, FIFA invited the Respondent to provide it with its position on the matter until 10 February 2020, and that on 10 February 2020, i.e. the deadline day, the Respondent filed an unsubstantiated request for a deadline extension.

10. What is more, the members of the Chamber took into account that on 11 February 2020, FIFA both (a) informed the Respondent that it could not grant the requested deadline extension and (b) closed the investigation-phase of the matter, and that on the same date, the Respondent filed a new (parallel) claim against the Claimant, regarding the same facts and contracts on the basis of the present dispute.

11. In this regard, the members of the Chamber recalled the contents of art. 16 par. 11 of the Procedural Rules, according to which deadline extensions may be awarded only once provided a substantiated request is submitted before the expiry of the original deadline.

12. The Chamber then turned its attention to the contents of the Respondent’s correspondence of 10 February 2020, and observed that the club requested a deadline extension of the basis of the said article, but failed to motivate, i.e. substantiate, why it merited such an extension. In other words, the Respondent limited itself to reference art. 16 par. 11 of the Procedural Rules.

13. As such, the Chamber found that merely referencing art. 16 par. 11 is not enough; the party in question must, even if briefly, motivate such request. In the Chamber’s view, awarding the Respondent a deadline extension in the case at hand would be to accept a “loop” argument, whereby a party is granted a deadline extension by the mere fact that the applicable rules allow deadline extensions to be awarded. The members of the Chamber were eager to emphasize that such an interpretation, as proposed by the Respondent, is in sheer contradiction with the clear and unequivocal contents of art. 16 par. 11 of the Procedural Rules, according to which parties must substantiate their request.

14. Accordingly, the DRC concluded that the FIFA Administration acted correctly on the basis of art. 9 par. 3 of the Procedural Rules by closing the investigation phase of the matter, as the Respondent had failed both to adequately request a deadline extension and file its position. In addition, the Chamber noted that the parallel claim filed by the Respondent against the Claimant on 11 February 2020 is nothing more than a counterclaim, which should have been filed within the same time limit applicable to the reply in line with art. 9 par. 3 of the Procedural Rules.

15. As such, the members of the Chamber concluded that the Respondent’s parallel claim is to be considered an attempt to circumvent the Procedural Rules, and as it was not timely filed, it cannot be taken into account. Likewise, the Chamber emphasized that the same conclusion must apply to the submission filed by the Respondent on 14 February 2020, which was filed late and cannot be considered, as per art. 9 par. 3 and 4 of the Procedural Rules.

16. Consequently, the Chamber decided that the Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. In this way, the DRC considered that the Respondent renounced its right to defence and thus accepted the allegations of the Claimant.

17. Furthermore, 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, they shall take a decision upon the basis of the documents on file, in other words, upon the statements and documents presented by the Claimant.

18. In continuation, the Chamber reverted to the player’s position, according to which at the time of the termination of the contract, the total amount of EUR 59,742 was yet to be paid by the club. The DRC further observed that the player granted the club in writing, on 7 November 2019, with a deadline of 15 days to cure its default, to no avail.

19. In this regards, the Chamber noted that it stands undisputed that the club had failed to pay the player his salaries of September and October 2019 in line with the contract, as well as the amounts due under the protocol, which had matured early in line with its acceleration clause.

20. On account of the above and taking into consideration the Chamber’s longstanding jurisprudence in this respect, as well as the contents of art. 14bis of the Regulations, the DRC decided that the player had just cause to unilaterally terminate the contract on 24 November 2019 and that the club is to be held liable for the early termination of the contract with just cause by the player.

21. In this sense, the DRC recalled that the club paid the player EUR 26,500 two days after the termination of the contract by the player, and considered that such late payment cannot change the legal stance of the player vis-à-vis the termination; it could only do so, the DRC concluded, had it been paid before, and not after, the termination took place. Notwithstanding, the Chamber highlighted that such amount would be taken into consideration for the calculation of the outstanding remuneration due by the club to the player.

22. The Chamber observed that the outstanding remuneration at the time of termination is equivalent to two salaries under the contract, i.e. September and October 2019, amounting to EUR 20,000, plus EUR 58,500 corresponding to the protocol. From such sum, EUR 26,500 paid by the club should be deducted from.

23. As a consequence, 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 amounts which were outstanding under the contract and the protocol at the moment of the termination, i.e. EUR 52,000.

24. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the members of the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amount of EUR 52,000 as of 1 October 2019 until the date of effective payment.

25. 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 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.

26. 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.

27. As a consequence, the members of 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. Therefore, other objective criteria may be taken into account at the discretion of the deciding body.

28. The members of the Chamber then turned their 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 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 in the calculation of the amount of compensation.

29. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the contract as from its date of termination with just cause by the player, i.e. 24 November 2020, until 31 May 2012, and concluded that the player would have received in total EUR 170,000 as remuneration had the contract been executed until its expiry date. Consequently, the Chamber concluded that the amount of EUR 170,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

30. 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, and recalled that the player did not sign any new contracts within the relevant period.

31. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided to partially accept the player’s claim and that the club must pay the amount of EUR 170,000 as compensation for breach of contract in the case at hand.

32. In addition, taking into account the player’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the club must pay to the Claimant interest of 5% p.a. on the amount of compensation as of 25 December 2019 until the date of effective payment.

33. Finally, taking into account the consideration under number II./3. 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.

34. In this regard, the DRC 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 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. The DRC 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, Dossa Momade Omar Hassamo Junior, is partially accepted.

2. The Respondent, AEL Limassol, has to pay to the Claimant the amount of EUR 222,000, plus interest at the rate of 5% p.a. as follows:

- on the amount of EUR 52,000 as from 1 October 2019 until the date of effective payment;

- on the amount of EUR 170,000 as from 25 December 2019 until the date of effective payment.

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

4. 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 point III./2. above.

5. The Respondent shall provide evidence of payment of the due amount in accordance with point III./2. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount plus interest due in accordance with point III./2. above is 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 amount is 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).

7. The ban mentioned in point III./6. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

8. 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.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note relating to the 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.

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

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

______________________________________

Emilio García Silvero

Chief Legal & Compliance Officer