Labour Disputes
Texto da decisão
Decis ion of the
Dispute Resolution Chamber (DRC) judge
passed on 15 April 2020,
by
S tijn Boey kens (Belgium),
on the claim presented by the player,
Doukoure Abdoulay e, Ivory Coast,
represented by Mr Slim Boulasnem
as Claimant
against the club,
Al Fais aly , Jordan
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 9 February 2019, the player from the Ivory Coast, Abdoulaye Dieng (hereinafter:
the Claimant or the player) and the Jordan club, Al Faisaly (hereinafter: the
Respondent or the club) signed an employment contract (hereinafter: the contract)
valid as from 9 February 2019 until “the end of the football season 2022”.
2.
In accordance with the contract, the player was entitled to the following
remuneration:
USD 800 as monthly salary “until the end of the football season 2019”;
USD 1,500 as monthly salary “until the end of the football season 2020”;
USD 2,500 as monthly salary “until the end of the football season 2021”;
USD 3,500 as monthly salary “until the end of the football season 2022”.
3.
Furthermore, the contract contains the following clause: “In case the first party [the
club] wishes to terminate the player’s contract, the first party [the club] pays the
second party dues until the date of termination of the contract”.
4.
According to information contained in the Transfer Matching System (TMS), the
football seasons in Jordan run as follows:
- 2018/2019: from 17 August 2018 until 25 October 2019;
- 2020: from 30 January 2020 until 5 November 2020;
- 2021: from 30 January 2021 until 5 November 2021;
- 2022: from 4 February 2022 until 28 October 2022.
5.
On 21 October 2019, the player sent a default notice to the club, requesting
payment of outstanding remuneration of USD 5,300, corresponding to the salaries of
February 2019 as well as July until September 2019, within 15 days and to provide
him with an employment VISA.
6.
On 28 November 2019, the player terminated the contract with the club, referring to
outstanding remuneration as well as the failure of the club to provide an
employment VISA.
7.
On 28 November 2019, the Claimant lodged a claim in front of FIFA against the
Respondent for outstanding remuneration and compensation for breach of contract,
requesting the total amount of USD 93,800 corresponding to:
• USD 8,300 as outstanding remuneration corresponding to the salaries of February
2019 to November 2019;
• USD 82,500 as compensation for breach of contract corresponding to the residual
value of the contract (December 2019 to June 2022);
Player Doukoure Abdoulaye, Ivory Coast / Club Al Faisaly, Jordan
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• USD 3,000 as additional compensation corresponding to 2 monthly salaries of USD
1,500 each;
• Sporting sanctions to be imposed on the Respondent.
8.
In its reply to the claim, the club argued that the player was on loan with the
Jordan club Al-Mansheya as from 11 February 2019 “until the end of the class 1
football league”.
9.
Moreover, the club deemed that due to the “postponement of the football
season” the club was not able to “re-register” the player. In addition, the club
stated that it requested the player to join the club for “club exercises” but he did
not attend, despite having been “issued an entry visa to the player on 20/10/2019
and sent a ticket to him to come to Jordan on 16/12/2019”.
10.
The club, provided a translated version of the employment visa issued on 20
October 2019, without providing the original. Furthermore, the club provided the
loan agreement signed between the Claimant, the Respondent and the club AlMansheya, according to which Al-Mansheya had to pay the player’s salary of USD
800 until the end of the 2018/2019 season.
11.
On 4 January 2020 the player signed a contract with the Emirati club, Al Tawoun,
valid as from 4 January 2020 until 30 April 2020, including a total salary of United
Arab Emirate Dirham (AED) 27,000 (approx. USD 7,460).
II.
Cons iderations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the
matter at hand. In this respect, he took note that the present matter was submitted
to FIFA on 28 November 2019. Consequently, the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber (edition
2019; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21
of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction
with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition
2020) he is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player
from the Ivory Coast and a Jordan club.
Player Doukoure Abdoulaye, Ivory Coast / Club Al Faisaly, Jordan
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3.
Furthermore, 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 par. 2 of the Regulations on the Status and Transfer of Players
(edition March 2020), and considering that the present claim was lodged on 28
November 2019, the October 2019 edition of said regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this
respect, the DRC judge started by acknowledging all the above-mentioned facts as
well as the arguments and the documentation on file. However, the DRC 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. In particular, the DRC judge recalled that in
accordance with art. 6 par. 3 of Annexe 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 Transfer Matching
System (TMS).
5.
Having said this, the DRC judge acknowledged that the Claimant and the
Respondent signed an employment contract valid as from 9 February 2019 until 28
October 2022, i.e. the date the season will end in Jordan in 2022. In accordance
with the contract, the Claimant was entitled to receive from the Respondent, inter
alia, a monthly salary of USD 800 during season 2019, USD 1.500 during season
2020, USD 2,500 during season 2021 and USD 3,500 during season 2022.
6.
In this respect, the DRC judge noted that the Claimant lodged a claim against the
Respondent for breach of contract in front of FIFA, requesting outstanding
remuneration as well as compensation for breach of contract.
7.
In this context, the DRC judge took note of the fact that, the Claimant put the
Respondent in default before terminating the contract on 28 November 2019.
8.
On the other hand, the DRC judge took note of the Respondent’s reply, according
to which the player was on loan with another club in Jordan between February
until October 2019 and that it did not “re-register” the player due to the
postponement of the season.
9.
On account of the above, the DRC acknowledged that the central issue in the
matter at stake was to determine as to whether the contract was terminated with
or without just cause and to decide on the consequences thereof.
Player Doukoure Abdoulaye, Ivory Coast / Club Al Faisaly, Jordan
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10.
With the above in mind, 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.
11.
In this respect, the DRC judge, turned his attention first to the Respondent’s
allegation that the player, after having signed a contract with the Respondent, was
loaned to the Jordan club Al-Mansheya. From the limited documentation on file,
and according to information available in the Transfer Matching System (TMS), the
DRC judge concluded that the player was indeed on loan with the abovementioned club as from 11 February 2019 until 25 October 2019 and that therefore,
Al-Mansheya, was obliged to pay the player’s salary during said period.
12.
Consequently, and on account of the above, the DRC judge rejected the player’s
claim regarding outstanding remuneration.
13.
Subsequently, the DRC judge continued to examine the allegation that the player
was not “re-registered” after completing the above-mentioned loan. In this regard,
the DRC judge noted that the Respondent admitted not having registered the
player.
14.
In light of the above, the DRC judge considered important to point out, as has been
previously sustained by the DRC, that among a player’s fundamental rights under
an employment contract, is not only his right to a timely payment of his
remuneration, but also his right to access training and to be given the possibility to
compete with his fellow team mates in the team’s official matches.
15.
This led the DRC judge to conclude that by refusing to register the Claimant, in
spite of its express commitment to do so, the Respondent is effectively barring, in
an absolute manner, the potential access of the Claimant to competition and, as
such, is violating one of his fundamental rights as a football player.
16.
Moreover, the DRC judge recalled the principle according to which, as confirmed by
its longstanding jurisprudence, the application for a work permit is an
administrative formality and therefore is the sole responsibility of a club.
17.
On account of all the above circumstances, and in particular considering the failure
to register the Claimant and to apply for a work permit, the DRC judge established
that the Respondent had no longer been interested in the Claimant’s services. Such
conduct constitutes, in the DRC judge’s view, a clear breach of contract.
Consequently, the DRC judge concurred the Respondent is to be held liable for the
early termination of the employment contact with just cause by the Claimant.
Player Doukoure Abdoulaye, Ivory Coast / Club Al Faisaly, Jordan
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18.
Having established that the Respondent is to be held liable for the early
termination of the employment contract, the DRC judge focused his attention on
the consequence of such termination. Taking into consideration art. 17 par. 1 of
the Regulations, the DRC judge decided that the Claimant is entitled to receive
from the Respondent an amount of money as compensation for breach of contract
in addition to any outstanding payments on the basis of the relevant contract.
19.
In continuation, the DRC judge focused his attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so,
the members of the DRC 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.
20.
In application of the relevant provision, the DRC judge held that it first of all had to
clarify as to whether the pertinent 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 DRC judge established that the contract did not contain such a clause.
21.
As a consequence, the members of the DRC judge determined that the amount of
compensation payable by Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations. The
DRC 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.
22.
Bearing in mind the foregoing as well as the claim of the player, the DRC judge
proceeded with the calculation of the monies payable to the player under the
terms of the contract until October 2022. Consequently, the DRC judge concluded
that the amount of USD 84,000 serve as basis for the determination of the amount
of compensation for breach of contract.
Player Doukoure Abdoulaye, Ivory Coast / Club Al Faisaly, Jordan
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23.
In continuation, the DRC 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 able to reduce his loss of income. According
to the constant practice of the DRC, 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.
24.
In this regard, the DRC judge noted that the Claimant had signed an employment
contract with the Emirati club Al Tawoun, valid as from 4 January 2020 until 30
April 2020, including a total salary of AED 27,000 (approx. USD 7,460).
25.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the DRC judge decided that the club must pay the
amount of USD 76,540 as mitigated compensation to the player, which was
considered reasonable and proportionate as compensation for breach of contract
in the case at hand.
26.
Furthermore, taking into account the consideration under number II./3. above, 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.
27.
In this regard, the DRC 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.
28.
Therefore, bearing in mind the above, the DRC judge 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.
29.
Finally, the DRC 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. 24bis par. 3 of the Regulations.
Player Doukoure Abdoulaye, Ivory Coast / Club Al Faisaly, Jordan
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30.
The DRC judge concluded by rejecting any further claim of the Claimant.
III.
Decis ion of the DRC judge
1. The claim of the Claimant, Doukoure Abdoulaye, is partially accepted.
2. The Respondent, Al Faisaly, has to pay to the Claimant, w ithin 45 day s as from
the date of notification of this decision, compensation for breach of contract in
the amount of USD 76,540.
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 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 plus interest mentioned under point 2. above.
5. The Respondent shall provide evidence of payment of the due amount in
accordance with point 2. above to FIFA to the e-mail address [email protected], duly
translated into one of the official FIFA languages (English, French, German,
Spanish).
6. In the event that the amount due in accordance with point 2. above is not paid by
the Respondent w ithin 45 day s 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.
Player Doukoure Abdoulaye, Ivory Coast / Club Al Faisaly, Jordan
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8. In the event that the amount due in accordance with point 2. above 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 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
Avenue de Beaumont 2
1012 Lausanne, Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected] / www.tas-cas.org
For the DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Doukoure Abdoulaye, Ivory Coast / Club Al Faisaly, Jordan
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