Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed on 8 May 2020,
in the following composition:
Clifford E. Hendel (US A / France), Deputy Chairman
Alex andra Gom ez Bruinew oud (Uruguay / The Netherlands ), member
S tefano La Porta (Italy ), member
on the claim presented by the player,
Is s aka Abudu, Ghana,
represented by Mr Slim Boulasnem
as Claimant
against the club,
Nejm eh S porting Club, Lebanon
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 19 July 2019, the Ghanaian player, Issaka Abudu (hereinafter: the player or the
Claimant) concluded an employment contract (hereinafter: the contract) with the
Lebanese club Nejmeh Sporting Club (hereinafter: the club or the Respondent), valid
as from 1 August 2019 until 30 June 2020.
2.
In accordance with art. 3.1 of the contract, the player was, inter alia, entitled to the
following amounts:
“- Contract Payment amounted USD 35,000 […] to be paid upon ITC receipt and after
the player passes successfully the required medical tests.
- A monthly salary of USD 6364 […] to be paid at the end of each month.”
3.
Furthermore, clause 8 of the contract stipulated that, “the parties hereto shall be
obliged to promptly notify each other and TFF any change in their respective
addresses by registered mail. Otherwise, a notice delivered to the respective addresses
of the parties specified in this contract shall be deemed to have been served properly.
All notices including disciplinary sanctions and out of squad decisions regarding the
Player can also be made to the Players’ e-mail account”.
4.
On 20 December 2019, the player put the club in default for the payment of USD
12,728, corresponding to the monthly salaries for October and November 2019, giving
the club a deadline of 15 days.
5.
On 6 January 2020, the player unilaterally terminated the contract with the club,
invoking the club’s non-compliance with its financial obligations.
6.
On 6 January 2020, the player lodged a claim in front of FIFA against the club for
breach of contract and requested the following:
-
-
-
USD 19,092 as outstanding remuneration corresponding to the salaries of
October to December 2019 included (3 x USD 6,364), plus 5% interest as of the
due dates;
USD 57,276 as compensation for breach of the contract, corresponding to:
USD 38,184 as residual value of the contract (from January 2020 to June
2020 included);
USD 19,092 as additional compensation, corresponding to 3 monthly
salaries;
Sporting sanctions to be imposed on the Respondent.
Player Issaka Abudu, Ghana / Club Nejmeh Sporting Club, Lebanon
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7.
In his claim, the player deemed that the club failed to pay 2 monthly salaries despite
being put in default.
8.
Moreover, the player claimed that instead of paying the due amounts, the club
informed him to start looking for a new club, due to the rules regarding the
participation of foreign players in the Lebanese League.
9.
In its reply, the club deemed that the player has a valid contract with the club until
30 June 2020 and that it is “still communicating with the [Claimant] to settle their
outstanding salaries in Lebanon”.
10.
Furthermore, the club argued that the player refused to receive a check for the
amount of USD 12,728.
11.
Finally, the Respondent deemed that due to the difficult financial situation in
Lebanon, payments could only be made in cash and that the Respondent was willing
to settle the outstanding debts in this manner.
12.
According to the information available on TMS, on 24 January 2020, the Claimant
signed a contract with the Tunisian club ES Metlaoui valid as from 24 January 2020
until 30 June 2021, according to which the player would be entitled to earn Tunisian
Dinar (TD) 12,000 over the relevant period, which corresponds to USD 4,242
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
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 submitted to FIFA on 6 January 2020.
Taking into account the wording of art. 21 of the 2019 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.
2.
Subsequently, the members of the Chamber 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 March 2020),
the Dispute Resolution Chamber is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
Ghanaian player and a Lebanese club.
Player Issaka Abudu, Ghana / Club Nejmeh Sporting Club, Lebanon
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3.
Furthermore, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, the Chamber confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition March 2020), and considering that the claim was lodged on 6 January 2020,
the January 2020 edition of the aforementioned regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. However, the Chamber
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. In particular, the Chamber recalled that, in
accordance with art. 6 par. 3 of Annex 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 TMS.
5.
Having said this, 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.
6.
First of all, the members of the Chamber acknowledged that, on 19 July 2019, the
player and the club had concluded an employment contract valid as from the 1 August
2019 until 30 June 2020, pursuant to which the club undertook to pay to the player
the remuneration as established in point I.2 above.
7.
Furthermore, the members of the DRC took note of the fact that, on 20 December
2019, the player had put the club in default of payment of the amount of USD 12,728,
corresponding to the salary for October and November 2019 setting a 15 days’ time
limit in order to remedy the default.
8.
Moreover, the DRC took note that, according to the player, he had just cause to
unilaterally terminate the employment contract on 6 January 2020, since no payment
had been made by the club in this respect.
9.
Subsequently, the members of the DRC took note that the Respondent, for its part,
did not contest that it didn’t pay the player the salary for October, November and
December 2019 because of the difficult financial situation in Lebanon and that
payments could only be made in cash.
Player Issaka Abudu, Ghana / Club Nejmeh Sporting Club, Lebanon
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10.
In continuation, the Chamber observed that the Respondent claimed that the player
rejected to receive the payment by cheque.
11.
In light of the foregoing, the DRC considered that the underlying issue in this dispute,
considering the parties’ position, was to determine as to whether the player had just
cause to terminate the employment contract and to determine the consequences
thereof.
12.
In this context, the Chamber deemed it appropriate to clarify that, in accordance with
art. 12 par. 3 of the Procedural Rules, in the present case, the Respondent bore the
burden of proving either the payment of the Claimant’s salaries or that it had a valid
reason for not having done so.
13.
In addition, the Chamber recalled that the club referred to the difficult financial
situation in Lebanon in order to justify its non-payment of the player’s outstanding
salaries.
14.
However, the Chamber wished to stress that, in line with its well-established
jurisprudence, a club’s or country’s financial difficulties cannot be considered a valid
justification for non-compliance with its essential contractual obligation deriving
from the signature of an employment contract, that is, to pay a player’s remuneration
in full and in a timely manner.
15.
In view of the above, the DRC concluded that the Respondent did not bring any valid
reason to justify the delay in paying the player’s remuneration.
16.
In continuation, the Chamber highlighted that on the basis of the parties’
submissions, it could be noted that the Respondent did not contest that, by the time
the player terminated the contract, at least three monthly salaries were outstanding.
Moreover the members of the DRC observed that it also remained undisputed that
the player provided the Respondent with 15 days to remedy its default.
17.
What is more, taking into account the consideration under point. II./3. above, the DRC
referred to art. 14bis par. 1 of the Regulations, which, inter alia, stipulates that, in
the case of a club unlawfully failing to pay a player at least two monthly salaries on
their due dates, the player will be deemed to have a just cause to terminate his
contract, provided that he has put the debtor club in default in writing and has
granted a deadline of at least 15 days for the debtor club to fully comply with its
financial obligation(s).
Player Issaka Abudu, Ghana / Club Nejmeh Sporting Club, Lebanon
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18.
Consequently, on account of the above and considering that, when the player
terminated the contract, three monthly salaries were due despite having the player
provided the Respondent with 15 days to remedy the default, the DRC concluded
that, on 6 January 2020, the player had just cause to unilaterally terminate the
employment contract.
19.
As a result, the Chamber decided that the Respondent is to be held liable for the early
termination of the employment contract with just cause by the player.
20.
Having established that the Respondent is to be held liable for the early termination
of the employment contract, the DRC focused his attention on the consequences of
such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC
established that the player is entitled to receive from the Respondent compensation
for breach of contract, in addition to any outstanding payments on the basis of the
relevant employment contract.
21.
Along those lines, the DRC firstly referred to the player’s request regarding the
outstanding remuneration at the time of the unilateral termination of the
employment contract. In this respect, the DRC concurred that the Respondent must
fulfil its obligations as per the employment contract in accordance with the general
legal principle of “pacta sunt servanda”.
22.
Consequently, and bearing in mind that the player terminated his employment
contract on 6 January 2020, the Chamber decided that the Respondent is liable to pay
to the player outstanding remuneration in the amount of USD 19,092, pertaining to
his monthly salaries of October, November and December 2019.
23.
In addition, taking into consideration the specific request of the player on the point,
the Chamber decided to award the latter interest at the rate of 5% p.a. on the total
amount of USD 19,092 as follows:
a. 5% interest p.a. as from 1 November 2019 until the date of effective payment on
the amount of USD 6,364;
b. 5% interest p.a. as from 1 December 2019 until the date of effective payment on
the amount of USD 6,364;
c. 5% interest p.a. as from 1 January 2020 until the date of effective payment on the
amount of USD 6,364.
24.
Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the
Chamber decided that the player is entitled to receive compensation for breach of
contract from the club.
Player Issaka Abudu, Ghana / Club Nejmeh Sporting Club, Lebanon
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25.
In continuation, the DRC focused his attention on the calculation of the amount of
compensation for breach of contract due to the Claimant by the Respondent in the
case at stake. In doing so, the DRC 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.
26.
In application of the relevant provision, the Chamber held that it first of all had to
clarify whether the pertinent employment contract contained any clause, by means
of which the parties had beforehand agreed upon a compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Chamber
observed that the employment contract does not contain any such clause.
27.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of
the parameters set out in art. 17 par. 1 of the Regulations. Bearing in mind the
foregoing, the Chamber proceeded with the calculation of the monies payable to the
player under the terms of the employment contract as from its termination and
concluded that the player would have been entitled to receive USD 38,184 as
remuneration had the employment contract been executed until its regular expiry
date, i.e. 30 June 2020. Consequently, the Chamber concluded that the amount of
USD 38,184 serves as the basis for the final determination of the amount of
compensation for breach of contract in the case at hand.
28.
In continuation, the Chamber assessed 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. In this respect, the DRC deemed
it necessary to refer to the first sentence of art. 17 par. 1 lit. ii) of the Regulations,
according to which, in case the player signed a new contract by the time of the
decision, the value of the new contract for the period corresponding to the time
remaining on the prematurely terminated contract shall be deducted from the
residual value of the contract that was terminated early (the ”Mitigated
Compensation”).
13.
In respect of the above, and according to the information contained in the TMS, the
Chamber recalled that, on 24 January 2020, the Claimant signed an employment
contract with the Tunisian club, ES Metlaoui, valid as from 124 January 2020 until 30
June 2021, according to which, he would be entitled to earn Tunisian Dinar (TD)
Player Issaka Abudu, Ghana / Club Nejmeh Sporting Club, Lebanon
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12,000 over the relevant period, which is approximately USD 4,242. On account of the
above, such amount shall be deducted, leading to a mitigated compensation in the
amount of USD 33,942.
29.
Subsequently, the Chamber turned its attention to the second sentence of art. 17 par.
1 lit. ii) of the Regulations, according to which, in addition to the mitigated
compensation, the player shall be entitled to an additional compensation of three
monthly salaries, subject to the early termination of the contract being due to
overdue payables, whereby the overall compensation may never exceed the rest value
of the prematurely terminated contract.
30.
With the above in mind, the Chamber decided to award the Claimant additional
compensation in the amount of USD 4,242, in accordance with the above-mentioned
provision.
31.
Consequently, on account of all the above-mentioned considerations, the Chamber
decided that the Respondent must pay the amount of USD 38,184 as compensation
for breach of contract to the player, which is considered by the Chamber to be a fair
and reasonable amount.
32.
Therefore, the DRC decided to partially accept the player’s claim and concluded its
deliberations by rejecting any further claim of the player.
33.
Furthermore, taking into account the consideration under number II./3. 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.
34.
In this regard, the Chamber 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.
35.
Therefore, bearing in mind the above, the DRC 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.
Player Issaka Abudu, Ghana / Club Nejmeh Sporting Club, Lebanon
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36.
Finally, the Chamber 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 Issaka Abudu, Ghana / Club Nejmeh Sporting Club, Lebanon
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III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Issaka Abudu, is partially accepted.
2.
The Respondent, Nijmeh Sporting Club, has to pay to the Claimant, w ithin 45 day s
as from the date of notification of this decision, the amount of USD 19,092 plus
interest as follows:
a.
b.
c.
5% interest p.a. as from 1 November 2019 until the date of effective payment
on the amount of USD 6,364;
5% interest p.a. as from 1 December 2019 until the date of effective payment
on the amount of USD 6,364;
5% interest p.a. as from 1 January 2020 until the date of effective payment on
the amount of USD 6,364.
3.
The Respondent 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 38,184.
4.
Any further claim lodged by the Claimant is rejected.
5.
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 mentioned under points 2. and 3. above.
6.
The Respondent shall provide evidence of payment of the due amounts in accordance
with points 2. and 3. above to FIFA to the e-mail address [email protected], duly
translated into one of the official FIFA languages (English, French, German, Spanish).
7.
In the event that the amount in accordance with points 2. and 3. above are 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).
Player Issaka Abudu, Ghana / Club Nejmeh Sporting Club, Lebanon
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8.
The ban mentioned in point 7. above will be lifted immediately and prior to its
complete serving, once the due amount is paid.
9.
In the event that the amounts due in accordance with points 2. and 3. above are 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 m otiv ated decision (legal remedy):
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 (CAS)
Avenue de Beaumont 2, CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Issaka Abudu, Ghana / Club Nejmeh Sporting Club, Lebanon
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