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 21 January 2020

Decision of the Dispute Resolution Chamber (DRC) judge

passed in Zurich, Switzerland, on 21 January 2020,

by

by Omar Ongaro (Italy), DRC judge,

on the matter between the player,

Ablaye Yaré Faye, Senegal,

represented by Mr Ousmane Seck

as Claimant

and the club,

CD Aves, Portugal

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 12 February 2019, the Respondent presented an offer to the Claimant, by means of which the Claimant would be entitled to a monthly net salary of EUR 7,000, as well as “ticket and accommodation”.

2. On 14 February 2019, the Claimant and the Respondent (hereinafter jointly referred to as: the parties) concluded an employment contract (hereinafter: the contract), valid as from 15 February 2019 until 30 June 2019.

3. According to art. 2 par. 1 of the contract, “the player confers to Aves CD, in express and irrevocably, the right to extend this Agreement for one (1) sports season additional – sports season 2019/20”.

4. Pursuant to art. 3 of the contract, the Respondent undertook to pay the following remuneration to the Claimant:

“1. CD Aves will pay the Player, as consideration for the activity carried out by the Player, the following amounts as net remuneration:

a) 2018/2019 season: four monthly installments of € 3,500.00, the first being due on March 20 2019 and the remaining installments on the 20th (twenty) of the following month to which it’s relates;

2. The Player will also be granted a housing allowance in the gross value of 500.00 €, which will be due as long as the contract is in force and will be paid monthly, upon payment of the aforementioned remunerations.”

5. On 2 July 2019, the Respondent informed the Claimant, via a text message, that the head coach requested a meeting with the Claimant.

6. On 30 July 2019, the Claimant sent a “Formal notice of payment of salary arrears” to the Respondent, pointing out that “his [player] salaries for the months of May and June 2019 (…), have not been made (…). If this situation lasts for 10 days, we will be forced to seize the competent authorities against you [club].”

7. On 29 August 2019, the Portuguese Sindicato dos jugadores (hereinafter: the Players’ Union) contacted the Respondent, stating that “(…) in the absence of other elements, CD Aves would only have to settle last season’s credits, which it would do quickly. In order for the player to move on and to close this matter, we inform you that the last two salaries and the last two housing subsidies totalling €8,000 (€8,000) remain outstanding”.

8. On the same day, the Respondent informed the Players’ Union that the payment of EUR 8,000 had been made in favour of the Claimant. On 30 August 2019, the Players’ Union thanked the Respondent for “the promptness with which you resolved this issue”.

9. On 2 September 2019, the Claimant lodged a claim against the Respondent in front of FIFA.

10. In his claim, the Claimant held that on 28 June 2019, the parties extended the contract, as per art. 2 par. 1, for one season as from 1 July 2019 until 30 June 2020.

11. The Claimant submitted an unsigned copy of said contract extension as part of his claim, stating that the original signed version was in possession of the Respondent. In this context, the Claimant stated that the contract extension between the parties was published by the newspaper A BOLA on its website on 1 July 2019.

12. In light of the above, the Claimant argued that the Respondent, through its conduct, unilaterally terminated the contract without just cause. As such, the Claimant requested the total amount of EUR 54,500, corresponding to the following:

- EUR 7,000 net, as salaries for the months of May and June 2019, plus 5% interest as from 20 June 2019 until the date of effective payment;

- EUR 35,000 net, as the annual remuneration as provided in the contract extension for the season 2019/2020;

- EUR 5,000 gross, corresponding to the housing allowance, as provided in the contract extension for the season 2019/2020;

- EUR 7,500 gross, as damages.

13. In its reply, the Respondent acknowledged that the parties drafted an extension to the contract, both in Portuguese and French, but that said contract was never signed by the parties.

14. In this regard, the Respondent held that it lost its interest in renewing the contract, as “(…) the player did not present the physical requirements to play and, certainly, would hardly have them ever again.”

15. Finally, the Respondent stated that an agreement was concluded with the Players’ Union to put an end to this matter. In this context, the Respondent claimed to have paid the amount of EUR 8,000 in favour of the Claimant.

II. Considerations of the Dispute Resolution Chamber judge

1. First, the Dispute Resolution Chamber judge (hereinafter also referred to as: the judge) analysed whether he was competent to deal with the matter at stake. In this respect, he took note that the present matter was submitted to FIFA on 2 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 judge 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 June 2019), he was competent to decide on the present matter, which concerns an employment-related dispute with an international dimension between a Senegalese player and a Portuguese club.

3. In continuation, the judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition June 2019), and considering that the present claim was lodged on 2 September 2019, the June 2019 edition of said regulations (hereinafter: Regulations) were applicable to the matter at hand as to the substance.

4. The competence of the Dispute Resolution Chamber judge and the applicable regulations having been established, the judge entered into the substance of the matter. In this respect, he started by acknowledging all the above-mentioned facts, the arguments and the documentation submitted by the Claimant and the Respondent. However, the judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand.

5. First, the Dispute Resolution Chamber judge noted that the parties entered into an employment contract valid as from 15 February until 30 June 2019, according to which the Respondent undertook to pay to the Claimant four monthly instalments of EUR 3,500 for the 2018/2019 season, as well as a monthly housing allowance in the amount of EUR 500.

6. Second, the judge noted that according to art. 2 par. 1 of the contract, the Respondent was entitled to extend the contract for one additional season, i.e. for the 2019/2020 season.

7. In this context, the judge acknowledged the Claimant’s position that the parties extended the contract on 28 June 2019, for one additional season as from 1 July 2019 until 30 June 2020. On the other hand, the judge also took note of the Respondent’s position, according to which the parties drafted the said extension but never signed it, as the Respondent was no longer interested in the services of the Claimant.

8. Third, the judge observed that the Claimant put the Respondent in default to pay his salaries of May and June 2019.

9. Furthermore, the judge also took note of the correspondence exchanged between the Respondent and the Players’ Union, according to which a payment of EUR 8,000, corresponding to outstanding remuneration, would have been made by the Respondent in favour of the Claimant, with a view of putting an end to the dispute.

10. In continuation, the judge noted that the Claimant lodged a claim against the Respondent maintaining that the Respondent had terminated the contract without just cause. Consequently, the Claimant requested the total amount of EUR 54,500.

11. Having established the aforementioned, the judge deemed that the underlying issues in the present dispute was to determine whether outstanding remuneration was due to the Claimant and whether the contract had been extended for the season 2019/2020, and as such whether the Respondent had unilaterally terminated said contract.

12. In this context, the judge first observed that following the default notice sent by the Claimant on 30 June 2019, the Respondent had not contested the outstanding remuneration due to the Claimant for the months of May and June 2019.

13. The judge then proceeded to analyse the correspondence between the Respondent and the Players’ Union and took good note of the alleged payment of EUR 8,000 made in favour of the Claimant as outstanding remuneration for the season 2018/2019. However, the judge emphasised that the Respondent failed to submit evidence that the payment of EUR 8,000 had duly been made in favour of the Claimant.

14. In light of the above, the judge concluded that the Claimant was entitled to outstanding remuneration for the months of May and June 2019 in the amount of EUR 7,000.

15. In addition, taking into account the Claimant’s request, the judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR 7,000 as of the due dates until the date of effective payment.

16. Having established the above, the judge took note of the Claimant’s claim of EUR 35,000 and EUR 5,000, respectively corresponding to the annual remuneration and to the housing allowance as provided in the contract extension for the season 2019/2020.

17. In this context, the judge recalled that while the Claimant affirmed that the parties signed the extension of the contract on 28 June 2019, for a duration of one year as from 1 July 2019 until 30 June 2020, the Respondent contested having signed the document, stating that it had lost interest in renewing the contract.

18. In these circumstances, the judge also recalled the content of art. 12 par. 3 of the Procedural Rules, which stipulates that any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

19. This said, the judge observed that the contract extension provided by the Claimant is unsigned by the parties.

20. Therefore, the judge concluded that there was no tangible evidence, enabling to ascertain that the contract had been validly extended for the season 2019/2020.

21. In view of the above, the judge decided to reject the Claimant’s requests for the payment of EUR 35,000 and EUR 5,000.

22. In continuation, due to the absence of any contractual provision and the lack of evidence provided, the judge also decided to reject the Claimant’s claim for damages in the amount EUR 5,000.

23. Consequently, in view of all of the above, the Dispute Resolution Chamber judge decided that the Respondent must pay the amount of EUR 7,000, plus 5% interest p.a. as from the due dates until the effective date of payment, to the Claimant.

24. The judge concluded his deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

25. Furthermore, the 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.

26. In this regard, the 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.

27. Therefore, bearing in mind the above, the Dispute Resolution Chamber judge 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.

28. Finally, the judge recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amount, in accordance with art. 24bis par. 3 of the Regulations.

III. Decision of the Dispute Resolution Chamber judge

1. The claim of the Claimant, Mr. Ablaye Yaré Faye, is partially accepted.

2. The Respondent, CD Aves, has to pay to the Claimant the amount of EUR 7,000 plus 5% interest p.a. as follows:

a. 5% p.a. on the amount of USD 3,500 as of 21 June 2019 until the date of effective payment;

b. 5% p.a. on the amount of USD 3,500 as of 21 July 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 2 above.

5. The Respondent shall provide evidence of payment of the due amounts in accordance with point 2 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).

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

7. The ban mentioned in point 6 above will be lifted immediately and prior to its complete serving, once the due amount is 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.

*****

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 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.

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber judge:

Emilio García Silvero

Chief Legal & Compliance Officer