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 on 8 May 2020,

in the following composition:

Clifford E. Hendel (USA / France), Deputy Chairman

Alexandra Gomez Bruinewoud (Uruguay / The Netherlands), member

Stefano La Porta (Italy), member

on the claim presented by the player,

Issaka Abudu, Ghana,

represented by Mr Slim Boulasnem

as Claimant

against the club,

Nejmeh Sporting Club, Lebanon

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 19 July 2019, the Ghanaian player, Issaka Abudu (hereinafter: the player or the Claimant) concluded an employment contract (hereinafter: the contract) with the Lebanese club Nejmeh Sporting Club (hereinafter: the club or the Respondent), valid as from 1 August 2019 until 30 June 2020.

2. In accordance with art. 3.1 of the contract, the player was, inter alia, entitled to the following amounts:

“- Contract Payment amounted USD 35,000 […] to be paid upon ITC receipt and after the player passes successfully the required medical tests.

- A monthly salary of USD 6364 […] to be paid at the end of each month.”

3. Furthermore, clause 8 of the contract stipulated that, “the parties hereto shall be obliged to promptly notify each other and TFF any change in their respective addresses by registered mail. Otherwise, a notice delivered to the respective addresses of the parties specified in this contract shall be deemed to have been served properly. All notices including disciplinary sanctions and out of squad decisions regarding the Player can also be made to the Players’ e-mail account”.

4. On 20 December 2019, the player put the club in default for the payment of USD 12,728, corresponding to the monthly salaries for October and November 2019, giving the club a deadline of 15 days.

5. On 6 January 2020, the player unilaterally terminated the contract with the club, invoking the club’s non-compliance with its financial obligations.

6. On 6 January 2020, the player lodged a claim in front of FIFA against the club for breach of contract and requested the following:

- USD 19,092 as outstanding remuneration corresponding to the salaries of October to December 2019 included (3 x USD 6,364), plus 5% interest as of the due dates;

- USD 57,276 as compensation for breach of the contract, corresponding to:

 USD 38,184 as residual value of the contract (from January 2020 to June 2020 included);

 USD 19,092 as additional compensation, corresponding to 3 monthly salaries;

- Sporting sanctions to be imposed on the Respondent.

7. In his claim, the player deemed that the club failed to pay 2 monthly salaries despite being put in default.

8. Moreover, the player claimed that instead of paying the due amounts, the club informed him to start looking for a new club, due to the rules regarding the participation of foreign players in the Lebanese League.

9. In its reply, the club deemed that the player has a valid contract with the club until 30 June 2020 and that it is “still communicating with the [Claimant] to settle their outstanding salaries in Lebanon”.

10. Furthermore, the club argued that the player refused to receive a check for the amount of USD 12,728.

11. Finally, the Respondent deemed that due to the difficult financial situation in Lebanon, payments could only be made in cash and that the Respondent was willing to settle the outstanding debts in this manner.

12. According to the information available on TMS, on 24 January 2020, the Claimant signed a contract with the Tunisian club ES Metlaoui valid as from 24 January 2020 until 30 June 2021, according to which the player would be entitled to earn Tunisian Dinar (TD) 12,000 over the relevant period, which corresponds to USD 4,242

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 6 January 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 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 March 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 Ghanaian player and a Lebanese club.

3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition March 2020), and considering that the claim was lodged on 6 January 2020, the January 2020 edition of the aforementioned regulations (hereinafter: the 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 the documentation submitted by the parties. 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. In particular, the Chamber recalled that, in accordance with art. 6 par. 3 of Annex 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the TMS.

5. Having said this, 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.

6. First of all, the members of the Chamber acknowledged that, on 19 July 2019, the player and the club had concluded an employment contract valid as from the 1 August 2019 until 30 June 2020, pursuant to which the club undertook to pay to the player the remuneration as established in point I.2 above.

7. Furthermore, the members of the DRC took note of the fact that, on 20 December 2019, the player had put the club in default of payment of the amount of USD 12,728, corresponding to the salary for October and November 2019 setting a 15 days’ time limit in order to remedy the default.

8. Moreover, the DRC took note that, according to the player, he had just cause to unilaterally terminate the employment contract on 6 January 2020, since no payment had been made by the club in this respect.

9. Subsequently, the members of the DRC took note that the Respondent, for its part, did not contest that it didn’t pay the player the salary for October, November and December 2019 because of the difficult financial situation in Lebanon and that payments could only be made in cash.

10. In continuation, the Chamber observed that the Respondent claimed that the player rejected to receive the payment by cheque.

11. In light of the foregoing, the DRC considered that the underlying issue in this dispute, considering the parties’ position, was to determine as to whether the player had just cause to terminate the employment contract and to determine the consequences thereof.

12. In this context, the Chamber deemed it appropriate to clarify that, in accordance with art. 12 par. 3 of the Procedural Rules, in the present case, the Respondent bore the burden of proving either the payment of the Claimant’s salaries or that it had a valid reason for not having done so.

13. In addition, the Chamber recalled that the club referred to the difficult financial situation in Lebanon in order to justify its non-payment of the player’s outstanding salaries.

14. However, the Chamber wished to stress that, in line with its well-established jurisprudence, a club’s or country’s financial difficulties cannot be considered a valid justification for non-compliance with its essential contractual obligation deriving from the signature of an employment contract, that is, to pay a player’s remuneration in full and in a timely manner.

15. In view of the above, the DRC concluded that the Respondent did not bring any valid reason to justify the delay in paying the player’s remuneration.

16. In continuation, the Chamber highlighted that on the basis of the parties’ submissions, it could be noted that the Respondent did not contest that, by the time the player terminated the contract, at least three monthly salaries were outstanding. Moreover the members of the DRC observed that it also remained undisputed that the player provided the Respondent with 15 days to remedy its default.

17. What is more, taking into account the consideration under point. II./3. above, the DRC referred to art. 14bis par. 1 of the Regulations, which, inter alia, stipulates that, in the case of a club unlawfully failing to pay a player at least two monthly salaries on their due dates, the player will be deemed to have a just cause to terminate his contract, provided that he has put the debtor club in default in writing and has granted a deadline of at least 15 days for the debtor club to fully comply with its financial obligation(s).

18. Consequently, on account of the above and considering that, when the player terminated the contract, three monthly salaries were due despite having the player provided the Respondent with 15 days to remedy the default, the DRC concluded that, on 6 January 2020, the player had just cause to unilaterally terminate the employment contract.

19. As a result, the Chamber decided that the Respondent is to be held liable for the early termination of the employment contract with just cause by the player.

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

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

22. Consequently, and bearing in mind that the player terminated his employment contract on 6 January 2020, the Chamber decided that the Respondent is liable to pay to the player outstanding remuneration in the amount of USD 19,092, pertaining to his monthly salaries of October, November and December 2019.

23. In addition, taking into consideration the specific request of the player on the point, the Chamber decided to award the latter interest at the rate of 5% p.a. on the total amount of USD 19,092 as follows:

a. 5% interest p.a. as from 1 November 2019 until the date of effective payment on the amount of USD 6,364;

b. 5% interest p.a. as from 1 December 2019 until the date of effective payment on the amount of USD 6,364;

c. 5% interest p.a. as from 1 January 2020 until the date of effective payment on the amount of USD 6,364.

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

25. In continuation, the DRC focused his attention on the calculation of the amount of compensation for breach of contract due to the Claimant by the Respondent in the case at stake. In doing so, the DRC 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 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 Chamber observed that the employment contract does not contain any such clause.

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 parameters set out in art. 17 par. 1 of the Regulations. 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 termination and concluded that the player would have been entitled to receive USD 38,184 as remuneration had the employment contract been executed until its regular expiry date, i.e. 30 June 2020. Consequently, the Chamber concluded that the amount of USD 38,184 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

28. In continuation, the Chamber assessed whether the player had signed an employment contract with another club during the relevant period of time, by means of which he would have been able to reduce his loss of income. In this respect, the DRC deemed it necessary to refer to the first sentence of art. 17 par. 1 lit. ii) of the Regulations, according to which, in case the player signed a new contract by the time of the decision, the value of the new contract for the period corresponding to the time remaining on the prematurely terminated contract shall be deducted from the residual value of the contract that was terminated early (the ”Mitigated Compensation”).

13. In respect of the above, and according to the information contained in the TMS, the Chamber recalled that, on 24 January 2020, the Claimant signed an employment contract with the Tunisian club, ES Metlaoui, valid as from 124 January 2020 until 30 June 2021, according to which, he would be entitled to earn Tunisian Dinar (TD) 12,000 over the relevant period, which is approximately USD 4,242. On account of the above, such amount shall be deducted, leading to a mitigated compensation in the amount of USD 33,942.

29. Subsequently, the Chamber turned its attention to the second sentence of art. 17 par. 1 lit. ii) of the Regulations, according to which, in addition to the mitigated compensation, the player shall be entitled to an additional compensation of three monthly salaries, subject to the early termination of the contract being due to overdue payables, whereby the overall compensation may never exceed the rest value of the prematurely terminated contract.

30. With the above in mind, the Chamber decided to award the Claimant additional compensation in the amount of USD 4,242, in accordance with the above-mentioned provision.

31. Consequently, on account of all the above-mentioned considerations, the Chamber decided that the Respondent must pay the amount of USD 38,184 as compensation for breach of contract to the player, which is considered by the Chamber to be a fair and reasonable amount.

32. Therefore, the DRC decided to partially accept the player’s claim and concluded its deliberations by rejecting any further claim of the player.

33. Furthermore, 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 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.

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. 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, Issaka Abudu, is partially accepted.

2. The Respondent, Nijmeh Sporting Club, has to pay to the Claimant, within 45 days as from the date of notification of this decision, the amount of USD 19,092 plus interest as follows:

a. 5% interest p.a. as from 1 November 2019 until the date of effective payment on the amount of USD 6,364;

b. 5% interest p.a. as from 1 December 2019 until the date of effective payment on the amount of USD 6,364;

c. 5% interest p.a. as from 1 January 2020 until the date of effective payment on the amount of USD 6,364.

3. The Respondent has to pay to the Claimant, within 45 days as from the date of notification of this decision, compensation for breach of contract in the amount of USD 38,184.

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 email 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 in accordance with points 2. and 3. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amount 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 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).

8. The ban mentioned in point 7. above will be lifted immediately and prior to its complete serving, once the due amount is paid.

9. In the event that the amounts due in accordance with points 2. and 3. above are still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

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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 (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

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer