F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 24 March 2021

Decision of the

Dispute Resolution Chamber (DRC) Judge

passed on 24 March 2021

regarding an employment-related dispute concerning the player Omar Tofic

BY:

Daan de Jong (Netherlands), DRC Judge

CLAIMANT:

Omar Tofic, Ghana

Represented by Yussif Alhassan Chibsah

RESPONDENT:

Wikki Tourists FC, Nigeria

I. Facts of the case

1. On 1 September 2020, the Ghanaian player, Omar Tofic (hereinafter: the player or the Claimant) and the Nigerian club, Wikki Tourists FC (hereinafter: the club or the Respondent) signed an employment contract, valid for a period of one season (hereinafter: the contract).

2. According to clause 4 of the contract, “the parties herein have agreed that where the Player is discovered wanting in anyway; which inter alia include incompetence, under performance, concealment of injury or engaged in immoral, illicit, unethical social life and indiscipline that cannot be condoned by the club or which may hindered the player from effective discharge of his responsibility as a professional football player in furtherance of this agreement, the club has every right to terminate the contract with the player immediately with or without notice giving to the player”.

3. According to clause 5 of the contract, the player was entitled to a monthly salary of Nigerian Naira (NGN) 450,000.

4. According to clause 9 of the contract, “the club may terminate this contract with the Player with or without advancing reason(s) of its decision to that effect”.

5. According to clause 10 of the contract, “In the event on any dispute by the parties herein arising from this agreement, the matter shall be referred to the Arbitration Panel / Committee of the League Management Company whose decision is binding on the parties”.

6. On 18 November 2020, the club sent a letter to the player by means of which the latter was informed that he was considered a “surplus” to the team and that his services were no longer needed. Such letter inter alia read as follows (quoted verbatim): “Following the Pre-season Tournament and Subsequent Screening Exercise, The Technical Crew submitted the list of players and you are surplus to the team requirement”.

7. On 30 November 2020, the player wrote to the club, claiming it had terminated the contract without just cause, and requesting payment of NGN 5,050,000. In such correspondence, the player acknowledged receipt of NGN 350,000 as his salary of September 2020.

8. On 1 December 2020, the club wrote to the player confirming the contents of the letter of 18 November 2020 and claiming that the NGN 350,000 paid were done so as “courtesy”. The club further detailed that the player had not been registered nor his International Transfer Certificate (ITC) requested.

9. According to the information available in the Transfer Matching System (TMS), the seasons in Nigeria ran as follows:

Season

Start date

End date

2018

1-1-18

31-12-18

2019

1-1-19

29-6-19

2019/2020

1-8-19

31-5-20

2020

1-6-20

30-11-20

2021

1-1-21

31-12-21

10. On 2 December 2020, the player filed the claim at stake against the club claiming that the club terminated the contract without just cause and seeking payment of outstanding remuneration and compensation for breach of contract, as follows:

a. NGN 100,000 as unpaid portion of the salary of September 2020 plus 5% interest p.a. as from 1 October 2020;

b. NGN 450,000 as the full unpaid salary of October 2020 plus 5% interest p.a. as from 1 November 2020;

c. NGN 4,500,000 as the residual value of the contract (calculated as from November 2020 to August 2021) plus 5% interest p.a. as from 19 November 2020;

d. USD 1,000 as legal costs.

11. The player further asked that sporting sanctions are imposed on the club.

12. In its reply to the claim, the club objected to the competence of FIFA and argued that the “Dispute Resolution Chamber or Arbitration Committee or Panel of the NFF” is competent to hear the dispute as per clause 9 of the contract in combination with art. 22 of the FIFA Regulations on the Status and Transfer of Players (RSTP) and Section D para. 1 to 6 of the NPFL Framework and Rule 2014/2015.

13. As to the substance, the club held that it had just cause to terminate the contract as per clauses 4 and 9. Hence, the club argued that art. 16 and 17 RSTP shall apply. The club furthermore argued that it terminated the contract before the season started on 27 December 2020.

14. The club stressed that it is “not liable to pay a dime to the player anymore”.

II. Considerations of the Dispute Resolution Chamber Judge

a. Competence and admissibility

15. First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was presented to FIFA on 2 December 2020 and submitted for decision on 24 March 2021. Taking into account the wording of art. 21 of the January 2021 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.

16. Subsequently, the DRC Judge referred to art. 3 par. 1 of the Procedural Rules and observed 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 February 2021), he is in principle competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Ghanaian player and a Nigerian club.

17. However, the DRC Judge acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of clause 9 of the contract highlighting that the parties to the contract had agreed to submit any dispute to the “Dispute Resolution Chamber or Arbitration Committee or Panel of the NFF”.

18. The DRC Judge emphasised that in accordance with art. 22 lit. b) of the February 2021 edition of the Regulations on the Status and Transfer of Players he 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.

19. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the DRC Judge referred to FIFA Circular no. 1010 dated 20 December 2005. In this regard, the DRC Judge further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

20. In this context, the DRC Judge wished to stress that the Respondent was unable to prove that, in fact, “Dispute Resolution Chamber or Arbitration Committee or Panel of the NFF” meet the minimum procedural standards for independent arbitration tribunals as laid down in art. 22 lit. b) of the Regulations on the Status and Transfer of Players, in FIFA Circular no. 1010 as well as in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, insofar as no evidence in support of the allegations raised by the Respondent were filed before the DRC Judge. The DRC Judge stressed the contents of art. 12 par. 3 of the Procedural Rules, according to which the Respondent carried the burden of proof in this respect.

21. In view of all the above, the DRC Judge established that, in line with the constant jurisprudence of the DRC, the Respondent’s objection to the competence of FIFA to deal with the present matter has to be rejected and that the DRC Judge 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.

b. Applicable legal framework

22. Subsequently, the DRC 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 Player (edition February 2021), and considering that the present claim was lodged on 2 December 2020, the October 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

c. Burden of proof

23. The DRC Judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, he stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties.

24. In this respect, the DRC Judge also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

d. Merits of the dispute

25. His competence and the applicable regulations having been established, and entering into the substance of the matter, the DRC Judge started by acknowledging the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, he 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.

i. Main legal discussion and considerations

26. The DRC Judge observed that the issue at the centre of the dispute is whether the club had just cause to terminate the contract, and the consequences thereto. In this regard, the DRC Judge took due that the Respondent terminated the employment relationship with the Claimant in what appeared to be the basis of the Claimant’s performance, but without advancing any specific reason other than the player was found to be a “surplus”.

27. The DRC Judge acknowledged thus that he had to examine whether the reasons put forward by the Respondent could possibly justify the termination of the contract in the present matter.

28. The DRC Judge emphasised that only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria which do not reasonably permit the expectation that the continuation of the employment relationship between the parties can continue, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to ensure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure.

29. In this regard, the DRC Judge recalled the DRC’s well-established jurisprudence relating to the fact that a player’s poor performance cannot be a valid reason for an employer to cease paying due salaries or terminate an employment contract, as this is a purely unilateral and subjective evaluation by the club. Thus, the DRC Judge emphasised that poor or unsatisfactory performance cannot by any means be considered as a valid reason to reduce a player’s salary, to impose a fine on a player, or to terminate an employment relationship.

30. Bearing in mind the foregoing and taking note of the fact of the justification found the club’s letter of 18 December 2020 (or the lack thereof), the DRC Judge concluded that no just cause on the club’s part had taken place.

31. Having concluded the above and for the sake of completeness, the DRC Judge went on with to analyse clauses 4 and 9 of the contract of the contract, which read respectively as follows:

Clause 4: “the parties herein have agreed that where the Player is discovered wanting in anyway; which inter alia include incompetence, under performance, concealment of injury or engaged in immoral, illicit, unethical social life and indiscipline that cannot be condoned by the club or which may hindered the player from effective discharge of his responsibility as a professional football player in furtherance of this agreement, the club has every right to terminate the contract with the player immediately with or without notice giving to the player”.

Clause 9: “the club may terminate this contract with the Player with or without advancing reason(s) of its decision to that effect”.

32. In this respect, the DRC Judge wished to point out that, in general, potestative clauses, i.e. clauses that contain obligations which fulfilment are conditional upon an event that one party entirely controls, can in general not be applied, since they limit the rights of the other contractual party in an excessive manner and lead to an unjustified disadvantage of the latter towards the other. Along those lines, the DRC Judge found that such clauses cannot be taken into consideration due to their potestative nature, especially insofar as gave respect to the player’s performance.

33. The DRC Judge therefore concluded that the Respondent did not have just cause to terminate the employment relationship with the Claimant.

ii. Consequences

34. Having established the above, the DRC Judge turned his attention to the question of the consequences of the unilateral termination of the contract by the Respondent without just cause. In this regard, the DRC Judge sought to establish whether any salaries had remained outstanding at the time of the termination. In addition, taking into consideration art. 17 par. 1 of the Regulations, the DRC Judge decided that the Claimant is entitled to receive compensation from the Respondent for the termination of the contract without just cause.

35. With due consideration of the above and turning his attention to the salaries allegedly paid by the Respondent to the Claimant, the DRC Judge noted that the Claimant asserted that at the time of the unilateral termination by the Respondent, his salaries of September 2020 (partially) and October 2020 (fully) were outstanding.

36. In this respect, the DRC Judge recalled the basic principle of burden of proof as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

37. Consequently, the DRC Judge noted that the Respondent did not dispute that these amounts had been outstanding, but rather claimed that the termination with lawful – something that has been established not to be the case as outlined above.

38. In view of the foregoing, the DRC Judge concluded that it could be established that at the time of termination of the employment relationship the Claimant was owed outstanding remuneration. As a consequence, and in accordance with the general principle of pacta sunt servanda, the Respondent must fulfil its obligations as per the contract with the Claimant and is consequently to be held liable for the payment of outstanding remuneration in the amount of NGN 100,000 pertaining to the monthly salary of September 2020 as well as NGN 450,000 corresponding to the salary of October 2020.

39. With regard to the claimed interest, the DRC Judge, applying the constant practice of the DRC decided to award the Claimant 5% interest p.a. on the amount of NGN 100,000 from 1 October 2020, and 5% interest p.a. on the amount of NGN 450,000 from 1 November 2020.

40. Bearing the previous considerations in mind, the DRC Judge went on to deal with the consequences of the early termination of the contract without just cause by the Respondent. Therefore, the DRC Judge decided that taking art. 17 par. 1 of the Regulations into consideration, the Claimant is entitled to receive compensation for breach of contract from the Respondent, in addition the aforementioned outstanding salaries and its respective interest.

41. In this context, the DRC Judge outlined that in accordance with the aforementioned provision, 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.

42. In application of the relevant provision, the DRC Judge held that it first had to clarify whether the pertinent employment contract contained any clause by means of which the parties had previously agreed on compensation payable by the contractual parties in the event of breach of contract. In this regard, the DRC Judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

43. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the DRC Judge took into account the remuneration due to the Claimant in accordance with the employment contract as well as the time remaining on the same contract, along with the professional situation of the Claimant after the early termination occurred.

44. For the sake of clarity, the DRC Judge emphasized that in line with the player’s claim and the evidence on file, the contract, which would run originally for one season, had started on 1 September 2020. Consequently, the DRC Judge that the contract would run for 12 months, or two entire half-seasons as indicated in TMS, and hence concluded that 10 months were still remaining at the time of termination.

45. Consequently, taking into account the financial terms of the contract the DRC Judge concluded that the remaining value of the contract from the early termination until the regular expiry of the contract amounts to NGN 4,500,000 and that such an amount shall serve as the basis for the final determination of the amount of compensation due for breach of contract.

46. In continuation, the DRC Judge took due note that following the early termination of the employment contract at the basis of the present dispute, the Claimant had not found new employment. Consequently, the DRC Judge established that the player could not mitigate the damages suffered.

47. In view of all of the above, the DRC Judge decided that the Respondent must pay the amount of NGN 4,500,000 to the Claimant as compensation for breach of contract without just cause, which is considered by the DRC Judge to be a reasonable and justified amount of compensation. With regard to the claimed interest, the DRC Judge, applying the constant practice of the DRC, decided to award the Claimant 5% interest p.a. on the said amount as from 19 November 2020.

iii. Compliance with monetary decisions

48. Finally, taking into account the applicable Regulations, 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.

49. In this regard, the DRC Judge highlighted 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.

50. Therefore, bearing in mind the above, the DRC Judge decided that, in the event that the club does not pay the amounts due to the player within 45 days as from the moment in which the player communicates the relevant bank details to the club, provided that the decision is final and binding, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.

51. The DRC Judge recalled that the above-mentioned bans 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.

e. Costs

52. The DRC Judge referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, he decided that no procedural costs were to be imposed on the parties.

53. Likewise and for the sake of completeness, the DRC Judge recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

54. Lastly, the DRC Judge concluded the deliberations by rejecting any other requests for relief made by any of the parties.

III. Decision of the Dispute Resolution Chamber Judge

1. The claim of the Claimant, Omar Tofic, is admissible.

2. The claim of the Claimant partially accepted.

3. The Respondent, Wikki Tourists FC, has to pay to the Claimant the following amounts:

- NGN 100,000 as outstanding remuneration plus 5% interest p.a. as from 1 October 2020 until the date of effective payment;

- NGN 450,000 as outstanding remuneration plus 5% interest p.a. as from 1 November 2020 until the date of effective payment;

- NGN 4,500,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 19 November 2020 until the date of effective payment.

4. Any further claims of the Claimant are rejected.

5. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.

6. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amount due, plus interest as established 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 following consequences shall arise:

 1.

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. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.

In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.

8. This decision is rendered without costs.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

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) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, 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 Procedural Rules).

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