Labour Disputes
Texto da decisão
REF FPSD-5769
Decision of the
Dispute Resolution Chamber
passed on 8 June 2022
regarding an employment-related dispute concerning the player Victor Sam Abata
BY:
Daan de Jong (Netherlands), Single Judge of the DRC
CLAIMANT:
Victor Sam Abata, Nigeria
Represented by Altius CV
RESPONDENT:
Stade Tunesien, Tunisia
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REF FPSD-5769
I.
Facts of the case
1.
On 13 January 2020, the Nigerian player, Victor Sam Abata (hereinafter: Claimant or player) and
the Tunisian club, Stade Tunesien (hereinafter: club or Respondent) concluded an employment
contract (hereinafter: contract) valid as from the date of the signature until 30 June 2023.
2.
According to the contract, the Respondent undertook to pay the Claimant the following monies:
- Tunisian Dinar (TND) 2,500 as monthly salary during the season 2019/2020;
- TND 20,000 as bonus for a “full season” regarding the season 2019/2020;
- TND 3,000 as monthly salary during the season 2020/2021;
- TND 40,000 as bonus for a “full season” regarding the season 2020/2021;
- TND 3,500 as monthly salary during the season 2021/2022;
- TND 50,000 as bonus for a “full season” regarding the season 2021/2022;
- TND 4,000 as monthly salary during the season 2022/2023;
- TND 60,000 as bonus for a “full season” regarding the season 2022/2023.
3.
On 28 January 2022, the Claimant put the Respondent in default and requested payment of TND
60,000, corresponding to the bonus related to the seasons 2020/2021 (TND 40,000) and
2019/2020 (TND 20,000), until 15 February 2022.
4.
The player confirmed that he remained unemployed up to date.
II. Proceedings before FIFA
5.
On 14 April 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the position
of the parties is detailed in continuation.
a. Position of the Claimant
6.
In his claim, the Claimant requested payment of the following monies:
- TND 20,000 as outstanding bonus related to the season 2019/2020, plus 5% interest p.a.
as of 30 June 2020;
- TND 40,000 as outstanding bonus related to the season 2021/2021, plus 5% interest p.a.
as of 30 June 2021;
- TND 200,000 as compensation for breach of contract, plus 5% interest p.a. as of 30 June
2021.
7.
In this context, the player pointed out that the claimed bonuses remained unpaid, even though
he put the club in default.
Moreover, the player argued that the club terminated the contract at the end of the season
2020/2021 due to its relegation.
8.
9.
The player pointed out that such termination was without just cause since no such clause was
agreed upon in the contract.
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10. In this context, the player requested compensation for breach of contract and requested payment
of the residual value of the contract.
b. Position of the Respondent
11. The Respondent failed to reply to the claim.
III. Considerations of the Single Judge of the DRC
a. Competence and applicable legal framework
12. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as
Single 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 14 April 2022 and submitted for
decision on 8 June 2022. Taking into account the wording of art. 34 of the October 2021 edition
of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
13. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. b)
of the Regulations on the Status and Transfer of Players (March 2022 edition), he is competent to
deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Nigerian player and a Tunisian club.
14. Subsequently, the Single 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 (March 2022 edition), and considering
that the present claim was lodged on 14 April 2022, the March 2022 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
15. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 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 Single Judge stressed the wording of art.
13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the
parties, including without limitation the evidence generated by or within the Transfer Matching
System (TMS).
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c. Merits of the dispute
16. His competence and the applicable regulations having been established, the Single Judge entered
into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However, the
Single Judge 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
17. The foregoing having been established, the Single Judge moved to the substance of the matter,
and took note of the Claimant’s argumentation that the club terminated the contract without just
cause and that he is claiming outstanding bonuses.
18. The Respondent, for its part, failed to present its response to the claim of the player, in spite of
having been invited to do so. In this way, the Chamber considered that the Respondent renounced
its right of defence and, thus, accepted the allegations of the Claimant.
19. Furthermore, as a consequence of the aforementioned consideration, the Single Judge concurred
that in accordance with art. 21 par. 1 of the Procedural Rules it shall take a decision upon the basis
of the documents already on file, in other words, upon the statements and documents presented
by the Claimant.
20. In this context, the Single Judge acknowledged that the Claimant’s allegations remained
uncontested. In this regard, the Single Judge concluded that the Claimant is entitled to the
bonuses claimed as they were contractually agreed and since it appears that the player rendered
his services until the end of the season 2020/2021.
21. Regarding the alleged contract termination by the club, the Single Judge noted that no
termination notice is on file. However, due to the fact that the club failed to contest the player’s
allegation, the Single Judge concluded that the club in fact terminated the contract at the end of
the season 2020/2021, i.e. on 30 June 2021.
22. In this scenario, the Single Judge recalled its long-standing jurisprudence, according to which only
a breach or misconduct which is of a certain severity justifies the termination of a contract without
prior warning. In other words, only when there are objective criteria which do not reasonably
permit to expect the continuation of the employment relationship between the parties, a contract
may be terminated prematurely. Hence, if there are more lenient measures which can be taken
in order for an employer to assure 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 be an ultima ratio.
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23. Taking into account the above considerations and the documentation on file and since relegation
does not constitute a valid reason to terminate a contract, the Single Judge concluded that the
Respondent had no just cause to terminate the contract with the Respondent.
ii. Consequences
24. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
25. The Single Judge observed that the outstanding remuneration at the time of termination, coupled
with the specific requests for relief of the player, are equivalent to the two bonuses; TND 20,000
related to the season 2019/2020 and TND 40,000 related to the season 2020/2021, amounting to
TND 60,000.
26. In accordance with the above-mentioned considerations, the Single Judge decided that, in
accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay
to the Claimant outstanding remuneration in the total amount of TND 60,000, plus 5% interest as
of the respective due dates.
27. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the Single Judge
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.
28. In application of the relevant provision, the Single Judge held that it first of all had to clarify as to
whether the pertinent employment contract contained 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 Single Judge established that no such
compensation clause was included in the employment contract at the basis of the matter at stake.
29. As a consequence, the Single Judge 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 Single Judge recalled that said provision provides for a non-exhaustive
enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
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30. Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded with
the calculation of the monies payable to the player under the terms of the contract from the date
of its unilateral termination until its end date. Consequently, the Single Judge concluded that the
amount of TND 200,000 (i.e. 12x TND 3,500 / 12x TND 4,000 / TND 50,000 / TND 60,000) serves
as the basis for the determination of the amount of compensation for breach of contract.
31. In continuation, the Single Judge verified as to 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 enabled to reduce his loss of income. According to the constant practice of the DRC as well
as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new employment contract
shall be taken into account in the calculation of the amount of compensation for breach of
contract in connection with the player’s general obligation to mitigate his damages.
32. In this respect, the Single Judge noted that the Claimant had not found new employment and
therefore was not able to mitigate his damages.
33. Consequently, on account of the above-mentioned considerations, the Single Judge decided that
the Respondent must pay the amount of TND 200,000 as compensation for breach of contract to
the Claimant, which is considered by the Single Judge to be a fair and reasonable amount.
34. Lastly, taking into consideration the player’s request as well as the constant practice of the Single
Judge in this regard, the latter decided to award the player interest on said compensation at the
rate of 5% p.a. as of 14 April 2022 until the date of effective payment.
iii. Compliance with monetary decisions
35. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24 par. 1
and 2 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.
36. In this regard, the Single 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. The overall maximum
duration of the registration ban shall be of up to three entire and consecutive registration periods.
37. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of notification of
the decision, failing which, at the request of the Claimant, a ban from registering any new players,
either nationally or internationally, for the maximum duration of three entire and consecutive
registration periods shall become immediately effective on the Respondent in accordance with
art. 24 par. 2, 4, and 7 of the Regulations.
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38. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form, which is attached to the present
decision.
39. The Single Judge 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. 24 par. 8 of the
Regulations.
d. Costs
40. The Single Judge referred to art. 25 par. 1 of the Procedural Rules, according to which “Procedures
are free of charge where at least one of the parties is a player, coach, football agent, or match
agent”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the
parties.
41. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25 par. 8
of the Procedural Rules, and decided that no procedural compensation shall be awarded in these
proceedings.
42. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Victor Sam Abata, is partially accepted.
2.
The Respondent, Stade Tunesien, has to pay to the Claimant, the following amount(s):
- Tunisian Dinar (TND) 20,000 plus 5% interest p.a. as from 1 July 2020 until the date of effective
payment;
- TND 40,000 plus 5% interest p.a. as from 1 July 2021 until the date of effective payment;
- TND 200,000 as compensation for breach of contract plus 5% interest p.a. as from 14 April 2022
until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision, the
following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall be
of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in
the event that full payment (including all applicable interest) is still not made by the end of
the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance with art.
24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 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 17 of the Procedural Rules).
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