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 10 September 2020

Decision of the

Dispute Resolution Chamber

Passed on 10 September 2020,

regarding an employment-related dispute concerning the player Ulysse Diallo

COMPOSITION:

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

MD Abu Nayeem Shohag (Bangladesh), member Michelle Colucci (Italy), member

CLAIMANT:

ULYSSE DIALLO, Mali

Represented by Mr. João Lobão

RESPONDENT:

SABAH FC, Azerbaijan

Represented by Mrs. Maria Tokmakova

I. FACTS OF THE CASE

1. On 2 August 2019, the Malian player, Ulysse Diallo (hereinafter: the player or the Claimant) and the Azerbaijani club, Sabah FC (hereinafter: the club or the Respondent) concluded a “contract on services” (hereinafter: the contract) valid as from the date of signature until 31 May 2021. The contract was drafted both in Azerbaijani and English.

2. According to art. 3.1.13 of the contract, the Claimant was entitled to receive from the Respondent AZN 1,000 net per month as rent allowance.

3. According to art. 5.1.1 of the contract, the Claimant was entitled to receive from the Respondent a total net fee of USD 320,000 “independent from the amount referred in 3.1.13” payable as follows:

a) Season 2019/2020:

- USD 30,000 as a signing-on fee until 15 August 2019;

- USD 50,000 as a signing-on fee until 31 January 2020;

- USD 80,000 to be paid to the player in ten monthly instalments of USD 8,000 each, starting from August 2019 to May 2020, due in 10 working days as from the end of each month;

b) Season 2020/2021:

- USD 40,000 as signing-on fee until 15 July 2020;

- USD 40,000 as signing-on fee until 31 January 2021;

- USD 80,000 to be paid to the player in ten monthly instalments of USD 8,000 each, starting from August 2020 to May 2021, due in 10 working days as from the end of each month.

4. On 15 August 2019, the player and the club signed a document titled “Annex 1 (one) about making amendments to assignment agreement (civil legal agreement) dd. 02.08.2019 signed by Ulysse Diallo and ‘Sabah Football Club’ LLC” (hereinafter: the additional agreement). The additional agreement was executed in Azerbaijani only.

5. The additional agreement contained the language transcribed below:

“1. Subject of Additional Agreement

The [Respondent] and [the Claimant] will agree to following edit of the Agreement dd.02.08.2019 by amending par. 3 and 5 of the Agreement.

3. [Respondent]’s obligations

3.1.13. The [Respondent] will pay the [Claimant] totally AZN (five hundred twenty six AZN twenty five kopeck (for 22 months, from August 1, 2019 to May 1, 2021).

5. Payment

5.1. The service fee payable from the [Respondent] to the [Claimant], awards and other payments for performing obligations and services hereof will be carried out in following manner.

5.1.1. This Agreement shall be effective from the date of its execution, total service fee 143 802.10 (one hundred forty three thousand eight hundred two AZN ten kopeck) will be transferred to bank account of football player in Azerbaijan for season 2019/20 hereof until May 31, 2020. The [Claimant] will receive 14 380.21 (five thousand four hundred six AZN two kopeck) per month by dividing it for 10 (ten) months.

5.1.1. The total service fee for about 143 802.10 (one hundred forty three thousand eight hundred two AZN ten kopeck) shall be transferred to bank account of the football player in Azerbaijan until May 31, 2021 for season 2020/21. The [Claimant] will receive 14 380.21 (five thousand four hundred six AZN two kopeck) per month by dividing it for 10 (ten) months.

5.2 In the Event that the [Claimant] does not receive service fee for 2 (two) months, AFFA can address the issue to players’ Status and Transfer Committee.

5.3 All taxes and SSPF distributions arising hereof and that are under [Claimant]’s disposal will be covered by the [Claimant].

2. Other terms of Additional Agreement

2.1. This Additional Agreement will be integral part of the Agreement dd.02.08.2019.

2.2 This Additional Agreement is executed in 2 (two) copies. One copy is provided to the [Claimant] and the other to the [Respondent].”

6. On 28 January 2020, the Claimant sent a formal notice to the Respondent requesting the payment of the USD 50,000 due on 31 January 2020 in accordance with the contract. The Respondent replied to such notice by underlining that the parties had signed the additional agreement whereby they had changed the payment terms of the contract.

7. On 24 March, via written notice, the Respondent was put in default by the Claimant of payment of USD 50,000 which had fallen due on 31 January 2020.

II. PROCEEDINGS BEFORE FIFA

8. On 14 May 2020, the player filed a claim against the club before FIFA for outstanding remuneration. A brief summary of the parties’ position is detailed in continuation.

a. Claim of the player

9. In his claim, the Claimant explained that the club made the first payment of USD 30,000 due on 15 August 2019. After receiving this amount, the player submitted he was called by the club for a meeting supposedly regarding tax issues arising from the contract. The Claimant explained that in good faith he attended this meeting with the Respondent’s Club Manager, Mr Alexey Barvinsky.

10. The player explained that in the cited meeting he was present with a document drafted in Azerbaijani, which he firstly refused to sign. However, the player explained that the Club Manager insisted, stating that such document was nothing more than a declaration for tax reasons for the local tax authority, and therefore it did not need to be in English.

11. Moreover, the Claimant submitted he was supposedly told that he could not leave the meeting until he had signed the document. As such, the Claimant, while admitting he signed the additional agreement, holds that the Club Manager took advantage of the good relationship he had with players to force the Claimant to sign such document, which he did not know, at the time, was in fact the additional agreement.

12. In continuation, the player argued that in late October 2019 he suffered more pressure from the Respondent’s Board, namely, he was sent to train with the youth team and his salary was paid late, which caused him stress and anxiety.

13. Following such behaviour on the Respondent’s part, the Claimant narrated that he asked his lawyer to enter negotiations regarding a mutual termination of the contract; however, the parties differed as to the amounts due until the end of the contract and no termination agreement was reached.

14. The player explained that at this point, the Respondent’s lawyer sent the additional agreement to the Claimant’s lawyer. Upon analysing the document, the Claimant claimed to have realized that the Respondent had made him sign the additional agreement in male fide, i.e. the document which he was forced to sign during the meeting with the Club Manager on 15 August 2019.

15. In continuation, the player explained that on 28 January 2020, he sent a formal notice to the Respondent requesting the payment of the USD 50,000 due on 31 January 2020 in accordance with the contract. The player further explained that the received a response from the Respondent underlining that the parties have signed a valid amendment whereby they have changed the payment terms.

16. The Claimant deemed that the additional agreement is null and void since the Claimant’s signature was fraudulently obtained by the Respondent. Indeed, the Claimant argued that he (i) was not informed of the contents of the document he was signing; (ii) the Respondent acted in bad faith when it presented a document in a language that it knew the Claimant did not understand, and (iii) was led to sign a document that he, as informed by the Club, was only needed for tax reasons. According to the Claimant, it is self-evident that no player or employee would freely relinquish half of his salary only 20 days after signing an employment contract.

17. Finally, the Claimant stated that on 24 March 2020 the Respondent was formally informed of the request of the Claimant to proceed with the payment of the amount due on 31 January 2020 (i.e. USD 50,000).

18. The Claimant requested the following relief:

“The Claimant requests the DRC to recognize that the amendment signed is considered null and void and consequently:

- The Respondent is ordered to pay the overdue salaries of USD 50,000 net plus 5% interest thereof as of 31 January 2020;

- The Respondent is ordered to pay the due salaries of: a) USD 40,000 due on 15 July 2020; b) USD 40,000 due on 31 January 2021.

- The Decision shall be executed in accordance with Art. 24 bis FIFA RSTP and also include a decision about the consequences of the clubs failure to pay all due amounts.”

b. Position of the club

19. The Respondent rejected the player’s claim. It explained that following a review by the club’s staff of the player’s performance, he was offered a loan transfer or a reduction of his salary in the meeting of 15 August 2019. The club asserted that its interpreter was present at the meeting and translated the contents of the additional agreement to the player.

20. As to the validity of the contract, the Respondent firstly argued that the fact that the language of the contract being Azerbaijani does not affect its validity. In particular, the Respondent argued that “FIFA does not provide for any mandatory rules regarding the language of the employment contract as a result of which one may therefore conclude that parties are generally entirely free to choose the language of the contract”. What is more, the Respondent referred to the jurisprudence of the DRC and argued that it “very consistently acknowledges agreements drafted in any language, even if one of parties does not speak that language, as valid and binding”.

21. In continuation, the Respondent argued that no evidence has been produced by the Claimant to demonstrate that the additional agreement was executed under duress or coercion. Accordingly, the Respondent is of the opinion that the player did not “adduce any evidence to the alleged fact, namely that the Additional Agreement was “signed under duress or induced by fraud”, therefore this argument also shall not be taken into account by the DRC as it is an ungrounded and false statement of the Player”.

22. The Respondent requested the claim to be rejected.

c. Contractual situation of the player

23. Upon request from FIFA to clarify his employment situation, the player confirmed that he was still under contract with the Respondent.

III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

a. Competence and applicable legal framework

24. 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 presented to FIFA on 14 May 2020 and submitted for decision on 10 September 2020. Taking into account the wording of art. 21 of the June 2020 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.

25. Subsequently, the Chamber 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 August 2020), the Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Malian player and an Azerbaijani club.

26. Subsequently, 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 Player (edition August 2020), and considering that the present claim was lodged on 14 May 2020, the March 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

27. The Chamber 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, the DRC stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties.

28. In this respect, the Chamber 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.

c. Merits of the dispute

29. The competence of the DRC and the applicable regulations having been established, the DRC entered into the merits of the dispute. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the 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.

i. Main legal discussion and considerations

30. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that the parties firstly dispute the validity of the additional agreement, and secondly the consequences thereof, i.e. whether the player is entitled to the requested outstanding remuneration or not.

31. On one hand, the Chamber recalled that the player argued that (i) he was not informed of the contents of the document he was signing; (ii) the Respondent acted in bad faith when it presented a document in a language that it knew the Claimant did not understand, and (iii) he was led to sign a document that, as informed by the Club, was only needed for tax reasons. As such, the player concluded that the additional agreement was to be considered null and void.

32. On the other hand, the DRC observed that the Respondent argued that the additional agreement was validly and regularly executed, since the fact that the player did not understand the language it was drafted in has no impact on such validity.

33. In this context, the Chamber acknowledged that it first had to examine whether the additional agreement had been validly concluded between the Claimant and the Respondent.

34. The Chamber then turned to the evidence on file and observed that the player did not bring forward any proof regarding his allegation that he was forced to sign the additional agreement. In other words, the DRC found itself unable to assess whether coercion or duress, as alleged by the player, had taken place in the occasion of the execution of the addition agreement, on account of the fact that the player did not meet his burden of proof in accordance with the aforementioned art. 12 par. 3 of the Procedural Rules.

35. At this point, the Chamber acknowledged the existence of the well-established jurisprudence of the DRC, according to which a party signing a document of legal significance, as a general rule, does so on its own responsibility and is consequently liable to bear the possible legal consequences arising from the execution of the document, even if - as in the case at hand - a player does not understand the language in which the document is drafted.

36. Consequently, in account of the foregoing considerations, the DRC found that the parties had validly executed the additional agreement and hence were bound by its terms in accordance with the principle of pact sunt servanda.

37. Nevertheless, the Chamber recalled and duly took into account that the parties also strongly dispute the circumstances, in particular, the legal and economic consequences of the additional agreement: whilst the player argues that he is owed USD 130,000 corresponding to three instalments of the sign-on fee agreed under the contract, the club submitted that the additional agreement established a new remuneration of the player, which did not include such payments.

38. Accordingly, the Chamber proceeded to examine if the player is entitled to the amounts sought, be that under the contract and/or the additional agreement.

39. By doing so, and once again underlying the contents of art. 12 par. 3 of the Procedural Rules, the Chamber noted that neither of the parties has provided evidence of the context regarding the execution of the additional agreement, in spite of the fact that both parties advance several arguments to this extent.

40. Consequently, the DRC established that it had to analyse only the contents of the additional agreement to determine the outcome of the second issue in dispute.

41. By doing so, the DRC was of the firm opinion that the contents of the additional agreement are unclear. The Chamber found it difficult to understand whether said additional agreement was executed with the purpose of overwriting/re-writing the contents of clauses 3.13 and 5.1.1 of the contract, or to provide further clarity on how payments would be performed, as an annex to the contract. In this respect, the following provisions were highlighted by the DRC:

a. The additional agreement is titled as an “annex 1” to “make amendments”;

b. Clause 1 of the additional agreement states that the “subject” (rectius, object) is to “edit” (i.e. change, correct) clauses 3 and 5 of the agreement.

c. The following item of the additional agreement reads “3.13” and states that the club would pay AZN 1,052.60 to the player for 22 months;

d. Item 5.1 et seq of the additional agreement establish that the player would receive the “total service fee” of AZN 143,802.10 in 10 equal instalments for each season, i.e. 2019/2020 and 2020/2021. The same item reads that the additional agreement was “effective from the date of its execution”;

e. Clause 5.3 of the additional agreement reads that the player would be responsible for “taxes” and “distributions”.

f. Clause 2.1 of the additional agreement states that it was an “integral part” of the contract.

42. Given such uncertainty, the DRC determined it was necessary to interpret the contents of the additional agreement. Such interpretation has to give due consideration, absent a clear wording, (a) to the true intention of the parties, and (b) to the principle of in dubio contra stipulatorem, bearing in mind that the club was the draftsman as the additional agreement is only in Azerbaijani, a language the player undisputedly is not familiar with.

43. On the first issue, i.e. the true intention of the parties, the Chamber starting by asserting it found incongruent for the player to give up on significant earnings, especially after having received USD 30,000 as sign-on fee a month earlier.

44. In continuation, the Chamber recalled that it is customary in the world of football that the parties sign additional agreements/addendums to further establish how payments will be performed, for both currency/exchange rate and tax issues.

45. In this sense, the Chamber examined the contents of both the contract and the additional agreement, and found that the parties, as narrated by the player, signed the additional agreement with the purpose of re-arranging payments in light of the applicable taxes. The Chamber came to such conclusion by observing that firstly, under the contract, payments would be due to the player net, and in USD for the most part as per the wording of clauses 3.13, 5.1 and 5.3 of the contract. However, as per the additional agreement, the parties agreed that the player would no longer receive his payments net, nor in USD for his monthly earnings, on account of the fact that he had a slight increase in his rent allowance, and the (new) monthly salary was slightly higher than the one foreseen in the contract.

46. Having so found, the Chamber then turned to the second point of interpretation, and determined that, bearing in mind that the club was the draftsman as the contract is only in Azerbaijani, both agreements on file must be interpreted to the disadvantage of the club.

47. On account of the foregoing considerations, the Chamber concluded that the additional agreement had to be read in conjunction with the contract, and not as a replacement of the former as argued by the club. In particular, the DRC found that the unclear wording of such document cannot be interpreted as if it was meant to be a full amendment to the contract. Consequently, and absent a clear disposition to the contrary, the Chamber established that the true intention of the parties was the one that the additional agreement only changed/amended specific portions of the contract regarding the remuneration of the player, but not its entirety; therefore not excluding the bonuses/sign-on fees due to the player, but solely to re-arrange payment methods regarding the player’s monthly earnings on account of tax/currency exchange issues.

48. In conclusion, the Chamber decided to uphold the argumentation of the Claimant that it would not have made sense for him to relinquish a significant portion of his earnings, and determined, in line with the contract and the principle of pacta sunt servanda, that the player is entitled to the remuneration of USD 50,000 which fell due on 31 January 2020 as well as the payment of USD 40,000 that was due on 15 July 2020, both of which the club failed to honour.

49. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the Respondent must pay to the player interest of 5% p.a. on the amount of USD 50,000 as from its due date until the date of effective payment.

50. At the same time, the Chamber concluded, as to the other amounts claimed by the Claimant, that these shall be considered premature, as they are not due before 31 January 2021.

51. The Chamber concluded its deliberations by rejecting any other claims filed by any of the parties.

ii. Compliance with monetary decisions

52. Finally, taking into account the consideration under number 48. 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.

53. 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.

54. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent 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 Respondent, 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 Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

55. The DRC 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.

d. Costs

56. The Chamber 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, the Chamber decided that no procedural costs were to be imposed on the parties.

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

IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, ULYSSE DIALLO, is partially accepted.

2. The Respondent, SABAH FC, has to pay to the Claimant the following amounts:

- USD 50,000 as outstanding remuneration plus 5% interest p.a. as from 1 February 2020 until the date of effective payment;

- USD 40,000 as outstanding remuneration.

3. The claim of the Claimant regarding payments concerning 31 January 2021 is premature.

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. The decision is pronounced free of 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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