Labour Disputes
Texto da decisão
REF. FPSD-8879
Decision of the
Dispute Resolution Chamber
passed on 7 July 2023
regarding an employment-related dispute concerning
the player Edmund Addo
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
André DOS SANTOS MEGALE (Brazil), member
Khadija TIMERA (Senegal), member
CLAIMANT / COUNTER - RESPONDENT 1:
Player Edmund Addo, Ghana
Represented by Marco del Fabro
RESPONDENT / COUNTER - CLAIMANT:
FC Sheriff Tiraspol, Moldova
Represented by SILA International Lawyers
COUNTER - RESPONDENT 2:
FK Spartak Subotica, Serbia
Represented by Zoran Damjanovic
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REF. FPSD-8879
I. Facts of the case
1. On 9 July 2021, the Ghanaian player Edmund Addo (hereinafter: the Player) and FC Sheriff Tiraspol
(hereinafter: Sheriff or the Club) concluded an employment contract (hereinafter: the Contract).
2. Art. 2 of the Contract reads as follows:
«2. TERM OF THE CONTRACT
2.1. The parties agree that this Contract shall be valid within the period from 09 July 2021 to 30
June 2024 (inclusive).
3. Art. 9 of the Contract reads as follows
9. SALARY
9.1.1. In the period from 09.07.2021 to 30.06.2022 - 8,000 EUR net per month.
9.1.2. In the period from 01.07.2022 to 30.06.2023 - 9,000 EUR net per month, provided that in the
period from 09.07.2021 to 30.06.2022 the Sportsman participates in not less than 70% of the
official matches (championship matches, Europa League and Champions League matches) in the
Club's main team.
In case the Sportsman participates in less than 70% of the official matches (championship matches,
Europa League and Champions League matches) in the Club's main team, then the Sportsman's
salary in the second year of the contract validity (period from 01.07.2022 to 30.06.2023) will be
paid in the amount ofB,000 EUR net per month;
9.1.3. In the period from 01.07.2023 to 30.06.2024 - 10,000 EUR net per month, provided that in
the period from 01.07.2022 to 30.06.2023 the Sportsman participates in not less than 70% of the
official matches (championship matches, Europa League and Champions League matches) in the
Club's main team.
In case the Sportsman participates in less than 70% of the official matches (championship matches,
Europa league and Champions League matches) in the Club's main team, then the Sportsman’s
salary in the third year of the contract validity (period from 01.07.2023 to 30.06.2024) will be paid
in the amount of 9,000 EUR net per month.
NB: Under the term 'participated' it is understood by the Parties that the Player was fielded and
took active part in the game (match), including additional time, no less than 30 (thirty) minutes in
every game (match).
9.3. Salary is paid monthly up to 25th day of the month following the month for which salary is
accrued.
4. On 1 October 2022, the player and Sheriff concluded an additional agreement to the Contract (the
“Additional Agreement”).
5. The Additional Agreement includes inter alia the following provisions:
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REF. FPSD-8879
B) The Sportsman confirms that in the period from June 17. 2022 until September 30. 2022, he was
absent from the location of FC Sheriff, Tiraspol. Moldova, without just cause. thus, he acknowledges
that he violated the terms of the employment contract.
D) The Sportsman confirms that he takes into account the fact that the period from 01.10.2022 to
28.02.2023, he cannot be involved In competitive activities by the Club, and therefore he cannot
make any claims against the Club.
2. The Parties, with the voluntary consent of the Sportsman, agreed on the condition that the salary
of the Sportsman will be paid the amount of 5,000 EUR net in the period from 01.10.2022 to 15.01
2023 (inclusive).
4. By signing this agreement, the Sportsman guarantees the following:
a) the Sportsman has no grounds to make any claims against the Club;
b) the Club has no unfulfilled obligations to the Sportsman.
6. In June 2022, the Player left the Club to participate in the Ghana national team’s matches.
7. On 17 June 2022, the Player was diagnosed with an injury in his right thigh.
8. On 23 June 2022, the Club sent a warning to the Player informing him that he had to had returned
by 17 June 2023 and requested him to return by 27 June 2022.
9. On 29 June 2022, the Club sent another warning letter requesting the Player to return by
3 July 2022.
10. On 21 July 2022, the Club sent another warning letter requesting the Player to return “as soon as
possible”.
11. On 13 September 2022, the Player requested the Club to purchase him airplane tickets.
12. On 29 September 2022, the Player returned to Moldova.
13. On 1 October 2022, the parties signed the Additional Agreement. In his submissions, the Player
alleged that the Additional Agreement was back-dated.
14. On 10 November 2022, the Player left Moldova.
15. On 21 November 2022, the Player sent a notice terminating the Contract with immediate effect
adducing just cause.
16. On 20 December 2022, the Club sent the Player a correspondence informing that the termination
was without just cause.
17. On 6 January 2023, the Serbian club FK Spartak (hereinafter: Spartak) contacted Sheriff requesting
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REF. FPSD-8879
information on the status of the Player.
18. On 9 January 2023, Sheriff informed Spartak that the Player had terminated the Contract
unilaterally and without just cause.
19. On 12 January 2023, the Player lodged this claim in front of the FIFA Football Tribunal.
20. On or before 20 January 2023, Spartak and the Player concluded an employment contract
(hereinafter: the Spartak Contract).
21. On 21 June 2023, the Player was transferred from Spartak to the Serbian club FC Crvena Zvezda
(hereinafter: Red Star) and the Player concluded an employment contract with Red Star
(hereinafter: the Red Star Contract).
II. Proceedings before FIFA
22. On 12 January 2023, the Player filed the claim at hand before FIFA. A brief summary of the position
of the parties is detailed in continuation.
a. Position of the Player
23. The Player underlines he normally communicated with the club via two persons Mr Sergiu Busuioc
and Mr Tim Cipling, mainly through phone calls.
24. The Player sustains that after suffering the injury in June 2022 he could not travel from Ghana to
Moldova. According to the Player he spoke with the Club and proposed to treat it with traditional
African medicine.
25. The Player states that after the default notices of 23 and 29 June 2022, he clarified the issue with
the club and “it was agreed that the Claimant could stay in Ghana and continue with rehabilitation as
it took time for traditional African medicine to be effective.”
26. According to the Player, he “was assured that the Respondent understood his situation and that it
approved his absence and treatments in Ghana, and he continued to stay in Ghana.”
27. The Player sustains that after his return to Moldova on 29 September 2022, he was called into a
meeting a forced to sign the Additional Agreement or to “bear consequences” against his physical
integrity.
28. The Player sustains that he was not allowed to read the Additional Agreement and that he was
under “the impression that he had no other reasonable option but to sign the given document”.
29. The Player states that only after the signature, he called “his agent and advisor Mr Antwi SintimPako to complain about abusive conduct of [Sheriff]”.
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REF. FPSD-8879
30. The Player argues that the Additional Agreement is unlawful since it contains abusive clauses only
in favour of Sheriff.
31. On the one hand, with the Additional Agreement the Player waived outstanding monthly salaries
for July, August and September 2022 and non-paid part of June 2022 salary. On the other hand,
art. 2 of the Additional Contract foresees a monthly salary reduction (from 8,000 EUR net) to the
amount of 5,000 EUR net in the period from 01 October 2022 until 15 January 2023.
32. Additionally, the Player refers to Recital d) of the Additional Agreement which according to the
Player “was put by the Respondent in order to justify its non-registration of the Claimant before the
Football Federation of Moldova and UEFA”.
33. The Player deems that precisely the non-registration of the Player entitled him to terminate the
Contract with just cause with immediate effect.
34. Based on the aforementioned circumstances, the Player concluded that the “[Sheriff] conduct
seriously damaged trust between them and that there is no more conditions for continuation of the
employment relationship. In other words: The relationship of trust between the Parties is definitive (sic)
destroyed” and on 21 November 2022, he sent the Termination Notice.
35. According to the Player, the abusive conduct of [Sheriff] was manifested in forcing him to sign the
Additional Agreement which has to be qualified as “excessive, unjust, in bad faith and aimed at
obtaining unfair advantages”. The Player states that he has not concluded the Additional
Agreement freely and voluntarily.
36. The Player further states that he was not allowed to read the Additional Agreement. Although, the
Player acknowledges that “only can - with the exception of his personal written statement - indirectly
prove duress”.
37. The Player further submits that “independently and additionally but based on the recital d) of the
Additional Agreement the Claimant terminated the Contract on account of his non-registration (deregistration) with the competent authorities.”
38. In the view of the Player, by failing to register him the Club committed a serious breach of its
contractual obligations.
39. In summary, the Player deems that there are sufficient elements to establish that he had
unilaterally terminated the Contract with just cause.
40. The Player refers to the letter from Sheriff of 20 December 2022, in which the Club admitted that
it did not register him.
41. Referring to his absence, the Player sustains that it was authorised since the wording of the
default notices was different and that Sheriff had not initiated any disciplinary proceedings
against him. In the view of the Player, if the Club did not tolerate further absence, it had to react
immediately or without delay and to terminate the contract with immediate effect or at least to
sanction him.
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REF. FPSD-8879
42. The Player claims the following amounts:
-
Salaries for July, August and September 2022 amounts to EUR 24,000 net (3 x
EUR 8,000net).
Part of June 2022 salary amounts to EUR 3,200 net (EUR 8,000 – EUR 4,800).
Salary for October 2022, the difference of EUR 3,000 net between the contracted salary in
the Contract and contracted salary in the Additional Agreement (EUR 8,000 – EUR 5,000).
21 days of November 2022, i.e. EUR 5,600net.
43. The Player calculates the residual value in EUR 166,400 net as contracted remuneration for the
period as from 22 November 2022 until 30 June 2024, which consists of:
-
9 days of November 2022 (22 – 30 November 2022) amounts to EUR 2,400 net,
7 monthly salaries for December 2022 - June 2023 (7 x EUR 8,000 net) amounts to EUR
56,000 net,
12 monthly salaries for July 2023 - June 2024 (12 x EUR 9,000 net) amounts to EUR 108,000
net
44. The Player deems appropriate to request on the ground of specificity of sport an additional
indemnity amount equal to six months' salary equal to EUR 48,000 net.
45. The Player filed the following requests for relief:
« 1. To decide that the Claimant terminated Contract with the Respondent with just cause.
2. The Respondent, PC Sheriff, shall be ordered to pay the Claimant, the Player Edmund Addo, the
total amount of 250.200,00 EUR net plus corresponding interest out of which:
a) 35.800,00 EUR net plus 5% interest p.a. as from 22 November 2022 until the date of effective
payment as outstanding remuneration;
b) 166.400,00 EUR net plus 5% interest p.a. as from 22 November 2022 until the date of effective
payment as compensation for breach of contract;
c) 48.000,00 EUR net plus 5% interest p.a. as from 22 November 2022 until the date of effective
payment as additional compensation on the account of specificity of sport.
3. The Respondent, PC Sheriff, shall be banned from registering any new players, either nationally
or internationally, for two entire and consecutive registration periods.
4. The Respondent shall be ordered to bear final costs of this procedure if there are any.»
b. Position & counterclaim of Sheriff
46. In its reply, Sheriff sustains that since the Player terminated the Contract, the burden of proof in
establishing that such premature termination was justified, lies with the Player.
47. Sheriff argues that the Player’s non-registration for the part of the season was due to the Player’s
failure to return to the Club’s premises timely.
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REF. FPSD-8879
48. Sheriff refers to art. 6 of the FMF Regulations on the Status and Transfer of Players, according to
which “medical and sports control is mandatory for the registration of players”. the Player without a
valid medical certificate cannot be registered for the competitions.
49. In this regard, Sheriff states that the Player had not passed the medical examination before
26 July 2022 and had not appeared in the Club before 5 September 2022, it left the Club with no
opportunity to register him as the registration period was closed on 5 September 2022.
50. Sheriff sustains that considering the behaviour of the Player and the several notices exchanged,
“it was acting in good faith and did everything possible from its side. However, it was deprived of an
opportunity to register the Player by the Player himself”.
51. Sheriff underlines that the Player was training with the professional team of the Club, he was
receiving his agreed salary and did not provide any notice to the Club concerning the nonregistration.
52. As for the absence, Sheriff underlines that the Player claims that the “representatives” of the Club
allowed him to stay in Ghana and treat his injury with traditional African medicine. However, there
is no evidence on file to corroborate said alleged approval. Consequently, Sheriff sustains that
this argument could not constitute just cause to terminate the Contract.
53. In relation to the Additional Agreement, Sheriff states that it “is a document which is signed and
exists. The fact that the Player’s representative sent it to the legal advisor on 31 October 2022 does not
prove in any way that the document was signed on that date.”
54. Moreover, Sheriff sustains that it had no debt towards the Player and that “the only debt that the
Club might have had in front of the Player is a salary payment for 10 days in November, during which
he was still in Moldova, but not performing his obligations under the Contract.”
55. Sheriff underlines that in the termination notice the Player refers only to:
(i)
(ii)
his non-registration and
duress with respect to the Additional Agreement.
56. However, Sheriff deems that there is:
(i)
(ii)
“no evidence whatsoever that the Player was in duress while signing the Additional
Agreement and
the Player should blame himself and himself only for non-registration.”
57. According to Sheriff, the Player has failed to put the Club in default in writing and has not granted
any deadline to comply with its financial obligations (if any) and furthermore “throughout the whole
period in question the Player was acting in bad faith and was engineering a “breach” on the Club’s side
in order to leave without transfer payment.”
58. Based on the above, Sheriff concludes that no just cause for the Player existed on
21 November 2022. Consequently, Sheriff sustains that it is entitled to compensation.
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REF. FPSD-8879
59. Sheriff refers the following elements for calculation of the compensation:
- Remuneration element (i.e., residual value of the Contract);
- Loss of transfer fee;
- Unamortized expenses of the Club;
- Specificity of sport.
a) Residual value
60. The residual value amounts to EUR 161,000.
b) Loss of transfer fee
61. Sheriff deems that the transfer value of the Player as on 21 November 2022 was EUR 2,000,000.
c)
Unamortized expenses
62. Sheriff states that it paid the amount of EUR 50,000 to transfer the player from its previous
club. Therefore, according to the amortization of the Player’s transfer value, the Club is entitled
to receive EUR 27,494 net.
d) Termination within the protected period and behaviour of the Player
63. Sheriff states that the Contract was terminated within the protected period. Therefore, the Club
is of the opinion that it is entitled to additional compensation in the amount of the Player’s
6 monthly salaries, i.e., EUR 48,000 net.
64. Sheriff concludes that the amount of compensation to be paid by the Player to the Club for
unilateral termination of the Contract without just cause equals to: EUR 2,000,000 + EUR 27,494
+ EUR 48,000 – EUR 161,000 = EUR 1,914,494.
65. Sheriff filed the following request for relief:
1. The claim of the Claimant / Counter-Respondent I, Mr. Edmund Addo, is rejected.
2. The counterclaim of the Respondent / Counter-Claimant, Football Club Sheriff, is accepted.
3. The Claimant / Counter-Respondent I, Mr. Edmund Addo is ordered to pay Football Club Sheriff
compensation for breach of contract in the amount of EUR 1,914,494 (One million nine hundred
thousand four hundred and ninety-four) net plus 5% p.a. as from 22 November 2022 until the date
of effective payment.
4. The Claimant / Counter-Respondent I, Mr. Edmund Addo is restricted on playing in official
matches for 6 (six) months in accordance with Article 17 para. 3 FIFA RSTP.
5. The Counter-Respondent II, Football Club Spartak Subotica, is jointly and severally liable for the
payment of compensation in accordance with Article 17 para. 2 FIFA RSTP.
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REF. FPSD-8879
6. The Counter-Respondent II, Football Club Spartak Subotica, is banned from registering any new
players, either nationally or internationally, for two entire and consecutive registration periods in
accordance with Article 17 para. 4 FIFA RSTP.
c. Answer of the Player to the counterclaim
66. The Player recalls that he terminated the Contract without notice and with immediate effect for
two reasons:
-
his non/de-registration for the season 2022/2023 by the Club;
the abusive conduct of the Club.
67. The Player also refers to art. 6 of the Regulations of Moldovan Football Federation on Status and
Transfer of Players and states that the “expiration of medical certificate would trigger only suspension
of the [Player]’s right to play (i.e. his capacity co be fielded) in [Sheriff] match(es) until he repasses
medical and sports control and obtains a new medical certificate, provided the Club has timely
registered”. Moreover, the Player states that he underwent medical examination on
30 September 2022.
68. The Player deems that only in October 2022, Sheriff “became aware of its previous failure to properly
register him with the Moldovan Football Association and consequences deriving from it. That explains
subsequent course of events”.
69. As for the absence of notice, the Player underlines that “a warning in case of a non-registration is
not necessary. In the case at hand such warning would have been of no use. The registration period
was closed, and there was no possibility to register the Player prior to the next official registration
period”.
70. The Player reiterates that he “was victim of contractual breaches of the Club which had damaging
consequences to the Player entailing him to terminate the Contract with the Club with just cause
without notice and with immediate effect.”
71. In the event the Player did not have just cause, the Player states that Sheriff cannot be awarded
any compensation. Alternatively, the DRC should significantly, at least by 50% reduce the liability
of the Player.
72. Based on the Player’s calculation, the total compensation payable to Sheriff would amount to
EUR 210,786.82 consisting of:
-
non-amortized transfer compensation EUR 26,951.33:
compensation based on remuneration EUR 183,835.49 net.
73. According to the Player, there is no certainty Sheriff would benefit from the transfer of the Player
and Sheriff “did not even substantiate to what terms and conditions it would have sold the Player with
his explicit consent”.
74. The Player concludes that Sheriff “has to pay the player a total of EUR 146.200 as compensation for
the breach of contract. This amount consists of EUR 35.800,00 net for outstanding salaries, EUR 2,400
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REF. FPSD-8879
(prorara net monthly salary of November), EUR 12,000 (monthly salaries January and half February
2023), EUR 48,000 due to egregious circumstances and EUR 48,000 due to the specificity of sport
respectively Art. 49 para 1 SCO”.
75. The Player amended its requests for relief as follows:
The Player terminated the Contract with FC Sheriff with just cause without notice with immediate
effect. Therefore, the Club has to pay compensation for breach of contract (An. 17 para. J RSTP) and
sanction has co be imposed on it (Art. 17 para. 4 RSTP). Accordingly, the Claim of the Player dated
12 January 2023 shall be accepted and the counterclaim of 13 February 2023 shall be dismissed.
in the unlikely event the Dispute Resolution Chamber comes to the conclusion char the Employment
Contract was terminated by the Player without just cause, no compensation is payable to Counter
Claimant pursuant co Arr. 337 para. 2 SCO based on the Club's conduct, the circumstances and
the Club's contributory negligence. In any case, the compensation would have to be reduced by at
least 50 %, and no sanctions should be imposed on the Player and the Counter-Respondent 2 (and
no joint liability of the new Club is applicable).
d. Answer of Spartak to the counterclaim
76. In the view of Spartak, “the Claimant`s allegations are not unlikely.”
77. Spartak deems that the content of the Additional Agreement is abusive and only detriment to the
Player from different aspects (economical, sporting, etc.).
78. Spartak sustains that the grounds invoked by the Player do constitute a just cause for termination
of contract.
79. Notwithstanding the above, Spartak states that its “first (indirect) contact between [the Player] and
[Spartak] at the end of December 2022”.
80. In the view of Spartak, it “is evident that the [Player] never intended to join [Spartak] before
termination and was therefore solely responsible for the termination of contract with the [Sheriff]”.
81. Spartak sustains that it has “successfully rebutted presumption of its inducement” to terminate the
contract and the DRC should decide that no sporting sanctions are to be imposed.
82. Spartak filed the following requests for relief:
1. To accept the claim of the Claimant;
2. To dismiss the counterclaim of the Respondent;
In case the counterclaim of the Respondent is upheld, the Counter – Respondent 2 asks Dispute
Resolution Chamber:
1. To adopt one of three alternative conclusions:
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REF. FPSD-8879
a) To order that no compensation is to be paid to the Respondent.
b) To significantly reduce (for 50%) calculated amount of compensation due to the Respondent
and to order that the amount of 105.393,41 EUR is to be paid to the Respondent as
compensation (for breach of contract).
c) To order that the compensation for breach of contract in the amount of 210.786,82 EUR is to
be paid to the Respondent.
2. To order that the Counter - Respondent 2 is not jointly and severally liable for payment of
compensation due to the Respondent.
3. To order that no sporting sanctions are to be imposed on the Claimant.
4. To order that no sporting sanctions are to be imposed on the Counter –Respondent 2.
5. To order the Respondent to pay the Claimant amount of 35.800,00 EUR net as outstanding
remuneration.
e. Final comments of Sheriff
83. Sheriff states that the Player has failed to substantiate with any tangible evidence the backdating
of the Additional Agreement or the alleged pressure on him to sign it.
84. Furthermore, Sheriff states that it registered the Additional Agreement with the Moldovan FA on
21 October 2022, thus, it could not be concluded on 31 October 2022 as alleged by the Player.
85. Additionally, Sheriff sustains that the provisions and terms are fair considering the behaviour of
the Player.
86. Sheriff further refers to the Player’s passport and refers to the Serbian visa granted on
1 September 2022. According to Sheriff, there is no explanation for the Player to apply for a
Serbian visa other than his intention to terminate the Contract.
87. As for the matter of the registration, Sheriff argues that it never (de-) or (not-) registered the Player
and his registration remained unchanged and his inability to be fielded arises out of his own
actions.
88. In the view of Sheriff, the Additional Agreement concluded on 1 October 2022, and the Player did
not raise any complaint until the termination of the contract on 21 November 2022 (i.e. 52 days).
Sheriff reiterates that the Player did not have just cause to terminate the Contract.
89. Sheriff reiterates its previous requests for relief.
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REF. FPSD-8879
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
90. 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 12 January 2023 and submitted for decision on
7 July 2023. Taking into account the wording of art. 34 of the March 2023 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.
91. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations
on the Status and Transfer of Players (May 2023 edition), 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 player from Ghana and a club from Moldova and a club
from Serbia.
92. 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 Players (May 2023 edition), and considering that the
present claim was lodged on 12 January 2023, the October 2022 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
93. The Chamber 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 Chamber 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).
c. Merits of the dispute
94. Its competence and the applicable regulations having been established, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. 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.
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i. Main legal discussion and considerations
95. The foregoing having been established, the Chamber moved to the substance of the matter, and
took note of the fact that the parties strongly dispute the justice of the contractual termination
by the Player.
96. In this context, the Chamber acknowledged that it its task was to determine whether the Player
had just cause to terminate the contract on 21 November 2022.
97. The Chamber observed that in the termination notice, the Player adduces two justifications for
the immediate termination.
i.
ii.
his non/de-registration for the season 2022/2023;
the abusive conduct of the club.
98. The DRC deemed that it shall assess if any of the two arguments merits the termination of the
Contract with immediate effect and without prior warning.
i.
Non/de-registration for the season 2022/2023
99. The Chamber noted that it is undisputed that the Player was absent for several months and that
the Player only moved back to Moldova on 29 September 2022 after several notices were
exchanged between the parties. However, the parties differ on the consent of Sheriff to the said
absence.
100.
Furthermore, the DRC observed that the parties provide different interpretations as to what
are the requirements to participate in competition under the auspices of the Moldovan FA and if
the Player had to undergo a medical examination.
101.
In the view of the Chamber, a pivotal point to adjudicate on the above is the signature of the
Additional Agreement dated 1 October 2022. In this regard, the Player argues that it was
concluded at the end of October and backdated. However, it has not provided any supporting
evidence other than his own witness testimony.
102.
Based on the evidence available on file, the Chamber was comforted on the fact that the
Additional Agreement was concluded on 1 October 2022, just a few of days after the Player’s
return and that at this point in time the parties acknowledged that the Player was not in a position
to participate in matches. Furthermore, the Chamber found that the Additional Agreement is to
be deemed valid and shall produce effects for the parties.
103.
The Chamber underscored that whilst in principle it is the duty of Sheriff to register the Player,
the Player, with his own actions, had contributed to a great extent to the situation since he failed
to return to Moldova for a period of several months.
104.
Thus, the DRC decided that the Player did not have just cause to terminate the Contract with
immediate effect on 21 November 2022 based on this argumentation.
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REF. FPSD-8879
ii.
Alleged abusive conduct of the club
105.
As for the second motive raised by the Player, he again refers to the Additional Agreement,
sustains that he was not allowed to read the Additional Agreement and that it was signed under
duress.
106.
In this regard, the DRC referred to art. 13. par. 5 of the Procedural Rules, according to which
“A party that asserts a fact has the burden of proving it” and the Chamber underlined that no direct
or ancillary evidence was provided regarding the existence of duress other than the Player’s
witness statement. Thus, the Chamber considered that the Player had not discharged his burden
of proof in this regard.
107.
As for the contents of the clauses of the Additional Agreement, the Chamber found that, if the
Player was not in agreement all or part of the Additional Agreement, he ought to have requested
the Club to remedy the situation and amend/set aside the Additional Agreement if necessary.
108.
In this scenario, the Chamber 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 the 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.
109.
Thus, the Chamber concluded that by directly terminating the employment relationship
without firstly requesting to remedy the alleged situation, the Player terminated the Contract
without just cause and the parties shall bear the consequences that follow.
ii. Consequences
a) Outstanding amounts due to the Player
110.
The Chamber observed that the Additional Agreement does not refer to the salaries for the
months of June to September 2022 claimed by the Player as outstanding in the amounts of
EUR 35,800.
111.
As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that Sheriff is liable to pay to the Player the amounts claimed as outstanding
under the Contract, in total EUR 35,800, as detailed in para. 42 above.
112.
In addition, taking into consideration the Player’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the Player interest at the rate of 5% p.a.
on the outstanding amounts as from 22 November 2022, as per the specific request of the Player,
until the date of effective payment.
pg. 15
REF. FPSD-8879
b) Compensation due to Sheriff
113.
Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to Sheriff by the Player in the case at stake. In doing so, the Chamber 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, the fees and expenses paid or
incurred by the former club (amortised over the term of the contract) and depending on whether
the contractual breach falls within the protected period.
114.
In application of the relevant provision, the Chamber 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.
115.
In this regard, the Chamber established that no such compensation clause was included in
the Contract.
116.
As a consequence, the Chamber determined that the amount of compensation payable by
the Player to Sheriff had to be assessed in application of the other parameters set out in art. 17
par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive
enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
117.
Bearing in mind the foregoing as well as the claim of Sheriff, the Chamber proceeded with the
calculation of the monies payable to the Player under the terms of the contract until its term.
Consequently, the Chamber concluded that the amount of EUR 166,400 (i.e. the residual value of
the contract) serves as the basis for the determination of the amount of compensation for breach
of contract.
118.
In continuation, the Chamber verified whether the Player had signed an employment contract
with another club during the relevant period of time. According to the constant practice of the
Chamber as well as art. 17 par. 1 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 due by a player to his former club. In particular, the Chamber explained that its
standard practice is to calculate the average between the Player’s remuneration with his former
club and his remuneration with the new club, for the exact same period of time comprised
between the early termination of the employment contract with the old club and the original
expiry date of such contract. In case substantial evidence thereof is provided, the Chamber might
additionally grant the damaged club the non-amortised transfer fee paid for the player in breach
and/or the actual costs incurred by the damaged club in order to replace the leaving player.
119.
In this respect, the Chamber noted that the Player found new employment with two different
clubs for the overlapping period, Spartak and Red Star.
pg. 16
REF. FPSD-8879
120.
For the time the Spartak Contract remained in place, the Player was entitled to the total
amount of EUR 55,000.
121.
According to the Red Star Contract up to the date of termination of the Contract
(i.e. 30 June 2024), in particular art. 6 and art. 3 of the annex to the Red Star Contract, the Player
is entitled to the remuneration of EUR 2,174,085.
122.
Thus, the Chamber concluded that between the date of early termination of the Player’s
contract with his former club and its original expiry date, the average between his remuneration
with the former club and his subsequent remunerations amount to EUR 1,197,742.50
[(EUR 166,400 + EUR 55,000 + EUR 2,174,085) / 2].
123.
Furthermore, the Chamber noted that, according to the copy of the transfer agreement
concluded for the Player provided by Sheriff, the latter paid a transfer fee of EUR 50,000 and
subsequently concluded with him an employment contract valid as from 9 July 2021 to
30 June 2024. As the Contract was prematurely terminated without just cause by the player on 21
November 2022, the Chamber concluded that the amount of EUR 26,951.33 [(EUR 50,000 / 1,089
days) * 587 days] corresponds to the non-amortised part of the transfer fee. Thus, such amount
shall be added to the average remuneration of the player in order to establish the total amount
of compensation due by the player to the club.
124.
Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the Player must pay the amount of
EUR 1,224,693.83 to Sheriff (i.e. EUR 1,197,742.50 + EUR 26,951.33), which was to be considered
a reasonable and justified amount of compensation for breach of contract in the present matter.
125.
Furthermore, the Chamber decided that, in accordance with art. 17 par. 2 of the Regulations,
Spartak shall be jointly and severally liable for the payment of the aforementioned amount of
compensation.
126.
Lastly, taking into consideration the Sheriff’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the interest on said compensation at the rate
of 5% p.a. as of 21 November 2022 until the date of effective payment.
iii. Compliance with monetary decisions
a) Outstanding amounts due to the Player
127.
Taking into account the applicable Regulations, the Chamber 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.
128.
In this regard, the DRC 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.
pg. 17
REF. FPSD-8879
129.
Therefore, bearing in mind the above, the DRC decided that Sheriff must pay the full amount
due (including all applicable interest) to the Player within 45 days of notification of the decision,
failing which, at the request of the Player, 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 Sheriff in accordance with art. 24 par. 2, 4, and 7 of the
Regulations.
130.
Sheriff shall make full payment (including all applicable interest) to the bank account provided
by the Player in the Bank Account Registration Form, which is attached to the present decision.
131.
The DRC 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.
b) Compensation due to Sheriff
132.
Additionally, the Chamber highlighted that, against players, the consequence of the failure to
pay the relevant amounts in due time shall consist of a restriction on playing in official matches
up until the due amounts are paid. The overall maximum duration of the restriction shall be of up
to six months.
133.
Therefore, bearing in mind the above, the Chamber decided that the Player must pay the full
amount due (including all applicable interest) to Sheriff within 45 days of notification of the
decision, failing which, at the request of the creditor, a restriction on playing in official matches
for the maximum duration of six months shall become immediately effective on the player in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
134.
The Player shall make full payment (including all applicable interest) to the bank account
provided by the club in the Bank Account Registration Form, which is attached to the present
decision.
135.
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. 24 par. 8 of the
Regulations.
d. Costs
136.
The Chamber 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.
137.
Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25 par.
8 of the Procedural Rules and decided that no procedural compensation shall be awarded in these
proceedings.
138.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
pg. 18
REF. FPSD-8879
any of the parties.
pg. 19
REF. FPSD-8879
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent 1, Edmund Addo, is partially accepted.
2.
The Respondent / Counter-Claimant, FC Sheriff Tiraspol, must pay to Claimant / Counter-Respondent
1 the following amount(s):
- EUR 35,800 as outstanding remuneration plus 5% interest p.a. as from 22 November 2022 until the
date of effective payment.
3.
Any further claims of Claimant / Counter-Respondent 1 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 debtor 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 creditor in accordance with art.
24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
The counterclaim of Respondent / Counter-Claimant is partially accepted.
8.
The Claimant / Counter-Respondent 1 must pay to Respondent / Counter-Claimant the following
amount(s):
- EUR 1,224,693.83 as compensation for breach of contract without just cause plus 5% interest p.a.
as from 21 November 2022 until the date of effective payment.
9.
The Counter-Respondent 2, FK Spartak Subotica, is jointly and severally liable for the payment of
the compensation mentioned under point 8 above.
10. Any further claims of Respondent / Counter-Claimant are rejected.
11. Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
pg. 20
REF. FPSD-8879
12. 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 Claimant / Counter-Respondent 1 shall be restricted on any football-related activity up until
the due amounts are paid. The overall maximum duration of the restriction shall be of up to
six months.
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 six
months.
13. The consequences shall only be enforced at the request of the creditor in accordance with art.
24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
14. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-8879
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 Governing the Football Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 22