Labour Disputes
Texto da decisão
REF FPSD-3075
Decision of the
Dispute Resolution Chamber
passed on 24 November 2021
regarding an employment-related dispute concerning
the player Joachim Adukor
BY:
Jérôme Perlemuter
CLAIMANT:
Joachim Adukor, Ghana
Represented by Felix Majani
RESPONDENT:
FK Sarajevo, Bosnia and Herzegovina
Represented by Manuel Illanes Boguszewski
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REF FPSD-3075
I.
Facts of the case
1.
On 5 September 2020, Joachim Adukor (hereinafter the Claimant or the player) and
FK Sarajevo (hereinafter the Respondent or the club) concluded an employment agreement
(hereinafter the Employment Agreement), valid as from 7 September 2020 until 30 June 2022.
2.
Therein, the Claimant and the Respondent (jointly referred to as the Parties) agreed upon,
inter alia, the following financial terms:
Salary (Art. 9 of the Employment Agreement):
“The Parties agreed that the monthly net salary is 8.801,20 [Bosnian Mark, hereinafter
BAM] (4500,00 EUR) The amount for accommodation shall be included in the salary. (…)”
Bonus (Art. 9 of the Employment Agreement):
“(…) The Player is entitled to a bonus. Bonus shall be paid only if the team wins the match.
The bonus is related to playing time that a player produces on the official minutes of the
match. The term “match” means all official matches of the Club (BH Telecom Premier
League, the Cup of Bosnia and Herzegovina, UEFA matches) and includes both domestic and
away games in the 2020/2021 and 2021/2022 season.
The bonus will be calculated on as follows, net of any taxation which will be paid on behalf
of the Player by the Club:
1. Win……………………400,00 [BAM]
- If the Club wins the match, [t]he Player is entitled to a bonus for the victory which will
be calculated as follows:
- If according to the official minutes of the match [t]he Player was among the first
eleven players who started the match, he shall be entitled to 100% of the amount of
the bonus for a win;
- If the [P]layer achieved a playing time of 16 to 90 minutes than he shall have the right
to 75% of the total amount of the bonus for the win.
- If the [P]layer spent in the game up to 15 minutes, he is entitled to 50% of the total
amount of the bonus for the win;
- If the [P]layer did not play (the bench) he is entitled to 30% of the total amount of the
bonus for the win. (…)
5. Winning the BiH Cup Title……………………5000,00 [BAM] netto
Bonuses for winning the BiH Premier League Title and the BiH CUP will be paid if the
[P]layer has played in at least 50% of official matched during the competition season.
Otherwise, a calculation will be applied that will calculate the % (percentage) of matches
played x (times) the amount of the agreed amount. In case of termination of the contract
before the end of the competition season, the obligation to pay the amount for winning
the (…) BiH CUP ceases to apply to the club.”
3.
In the season 2020/2021, the Respondent won the Bosnia and Herzegovina Football Cup.
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4.
On 25 June 2021, the Claimant sent a letter to the Respondent, requesting to remedy material
breaches of the Employment Agreement, i.e. provide the Claimant with a “payment of salaries
since January 2021”, within the next fifteen days, however to no avail.
5.
On 11 July 2021, the Claimant unilaterally terminated the Employment Agreement with
immediate effect.
6.
On 15 July 2021, the Claimant received the payment of BAM 18,785.22 from the Respondent.
7.
On 29 July 2021, the Claimant signed a new employment agreement (hereinafter the New
Employment Agreement) with the Kazakh club, FC Aktobe, valid as of 29 July 2021 until
31 October 2021.
8.
In accordance with Clause 3 of the New Employment Agreement, the Claimant was entitled to
the following monthly salary: “The Employer establishes to the Worker a monthly salary in a
size of 5 661 867 (five million six hundred and sixty-one thousand eight hundred and sixtyseven) tenge”.
9.
The value of the New Employment Agreement is 17,533,523.61 Kazakhstan Tenge (hereinafter
KZT), i.e. BAM 68,665.9.
II. Proceedings before FIFA
10. On 19 July 2021, 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
11. The Claimant argued that he had just cause to terminate the Employment Contract as the
Respondent failed to pay him five monthly salaries, i.e. exceeding the minimum of two monthly
salaries as foreseen for in art. 14bis of the Regulations on the Status and Transfer of Player.
12. In his claim, Claimant provided for the following breakdown:
“a) EUR 22,500 being his salary from February – June 2021; plus
b) EUR 1,596 which corresponds to 11 days salary for the month of July 2021; plus
c) EUR 2,500 for winning the Bosnia and Herzegovina Football Cup; plus
d) EUR 1,200 being his outstanding bonus for 5 match wins (…)
TOTAL: EUR 27,796”
13. The Claimant further acknowledged that “[a]fter the termination, Sarajevo paid him 18.785,22
BAM (approximately EUR 9,603) on 15th July 2021.” Therefore, the Claimant concluded that
his outstanding amount corresponds to EUR 18,193.
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14. Furthermore, with reference to art. 17 of the Regulations on the Status and Transfer of Player
and the doctrine of positive interest, the Claimant pointed out to the fact that the Employment
Agreement “still had 11 months and 20 days to run” and that his monthly salary amounted to
EUR 4,500. Consequently, the Claimant asserted that the residual value of the contract is
EUR 52,403.
15. Finally, with the reference to art. 17 par. 1 (ii) of the Regulations on the Status and Transfer of
Player, the Claimant requested additional compensation of three monthly salaries, i.e.
EUR 13,500.
16. The requests for relief of the Claimant were the following:
i.
EUR 18,193 for the remaining overdue payables and 5% interest p.a. which should
apply as follows:
- on EUR 4,500 as of 1 March 2021;
- on EUR 4,500 as of 1 April 2021;
- on EUR 4,500 as of 1 May 2021;
- on EUR 4,500 as of 1 June 2021;
- on EUR 4,500 as of 1 July 2021;
- on EUR 1,200 as of 12 July 2021;
- on EUR 2,500 as of 27 May 2021.
ii.
EUR 65,903 for compensation due to the breach of contract and 5% p.a. as of
12 July 2021 over the amount of the total compensation.
b. Position of the Respondent
17. In its reply, the Respondent argued that the Claimant did not have just cause to terminate the
Employment Agreement and that the claim shall be consequently rejected.
18. In this regard, the Respondent submitted that it made the following payments to the Claimant:
-
BAM 9,084.61 on 19 May 2021;
BAM 9,084.61 on 16 July 2021;
BAM 9,700.61 on 16 July 2021;
BAM 10,300.61 on 22 July 2021;
BAM 14,468.61 on 22 July 2021.
19. As for the salary payments of June 2021 and July 2021, the Respondent confirmed that no
payments have been made because the Claimant allegedly unilaterally breached its obligations
by travelling to Ghana to visit his family without the consent of the Respondent.
20. In this respect, the Respondent argued that the Claimant stopped “assisting to his professional
duties since 9 June 2021” and did not provide any clarity with regards to his return, as well as
acknowledged that he will not be attending the training sessions.
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21. Therefore, the Respondent was of the opinion that in accordance with Bosnian labour law, the
Claimant was not entitled to the salary of June and July 2021, as he did not perform his
contractual obligations.
22. With regard to the termination by the Claimant, the Respondent argued that “despite
attaching two letters; one providing a notice and the other to terminate, there is no evidence
given by the Claimant regarding the delivery or receipt of such letters by FK Sarajevo.
Furthermore, there was never any warning or indication that Mr Adukor was going to take this
drastic action which should ordinarily only be reserved as an ultima ratio.”
23. Furthermore, the Respondent argued that “the Player acted in bad faith submitting the claim
to FIFA without exhausting the amicable negotiation period, or at the least, simply discussing
the matter with The Respondent at all. (…)” and highlighted that “the termination of the
contract must always be an ultima ratio option. Therefore, all other remedies, including the
amicable negotiation period, must be exhausted before exercising that option.“
24. In this respect, the Respondent argued that the termination by the Claimant is unilateral and
invalid and, consequently, the claim should be dismissed.
c. Final Comments of the Claimant
25. The Claimant confirmed that the following payments were duly made by the Respondent:
-
BAM 9,084.61;
BAM 9,084.61;
BAM 9,700.61;
BAM 10,300.61;
BAM 14,468.61.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
26. 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 19 July 2021 and submitted for
decision on 24 November 2021. 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.
27. Subsequently, the Single Judge 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 (August 2021 edition), he 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 Bosnian club.
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28. Finally, 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 Player (August 2021 edition), and considering that the
present claim was lodged on 19 July 2021, the February 2021 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
29. 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 he 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
30. The 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 he will refer only to the facts,
arguments and documentary evidence, which he considered pertinent for the assessment of the
matter at hand.
i. Main legal discussion and considerations
31. The foregoing having been established, the Single Judge moved to the substance of the matter
and took note of the fact that the parties dispute the payment the justice of the early termination
of the contract by the Claimant, based on the alleged non-payment of certain financial obligations
by the Respondent as per the contract, in accordance with art. 14bis of the Regulations.
32. In this context, the Single Judge acknowledged that his task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained unpaid by
the Respondent and, if so, whether the Claimant had just cause to terminate the employment
contract.
33. The Single Judge then referred to the wording of art. 14bis par. 1 of the Regulations, in accordance
with which, if a club unlawfully fails 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).
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34. The Single Judge noted that the Claimant claims not having received his remuneration
corresponding to salaries of February 2021 until 11 July 2021, as well as a bonus for winning the
Bosnia and Herzegovina Football Cup and five performance bonuses related to match wins.
35. Furthermore, the Single Judge noted that the Claimant has provided written evidence of having
put the Respondent in default on 25 June 2021, i.e. 15 days before unilaterally terminating the
contract on 11 July 2021.
36. In this respect, the Single Judge noted also took note that the Respondent submitted several proofs of
payment and that the Claimant has recognized to have received those amounts.
37. For this purpose, the Single Judge summarized the performed payments based on the evidence on file:
Month
January 2021
February 2021
March 2021
Date of payment
19 May 2021
16 July 2021 (after termination)
16 July 2021 (after termination)
Salary
BAM 9,084.61
BAM 9,084.61
BAM 9,700.61
April 2021
22 July 2021 (after termination)
BAM 10,300.61
May 2021
22 July 2021 (after termination)
BAM 14,468.61
Out of which Bonus
BAM 600
- BAM 200 for participation (10 mins)
during a won match
- BAM 400 for participation (100%)
during a won match
BAM 1,200
- 3x BAM 400 for participation (100%)
during a won match
BAM 5,400
- BAM 400 for participation (100%)
during a won match
- BAM 5,000 for winning the Bosnian
Football Cup 2020/21
38. Based on the table above, the Single Judge concluded that the majority of the respective
payments, corresponding to the salaries due in the period between February and May 2021, were
made by the Respondent, after the unilateral termination of the contract by the Claimant, which
took place on 11 July 2021. What is more, the bonus for winning the Bosnian Football Cup 2020/21
was duly paid by the Respondent, as well as the performance bonuses based on winning five
matches.
39. At this point in time, the Single Judge wished to emphasize that the payment of several amounts
after the termination of a contract, are of no influence on the assessment whether on the date of
termination, a just cause for the party terminating the contract, existed. After having assessed the
circumstances on file the Single Judge noted that at the date of termination, i.e. 11 July 2021, the
Respondent had failed to pay at least 4 monthly salaries, and was therefore in breach of its
contractual obligations towards the Claimant for significant period of time.
40. Thus, the Single Judge concluded that the Claimant had a just cause to unilaterally terminate the
contract, based on art. 14bis of the Regulations.
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41. Finally, the Single Judge turned his attention to the Respondent’s arguments that the Claimant
was not entitled to the salaries of June 2021 and July 2021. In this respect, the Single Judge
confirmed that he was in favour of upholding such argument, based on the legal principle ex turpi
causa non oritur action, as the Claimant did not perform his contractual obligations towards the
Respondent in the mentioned period.
ii. Consequences
42. Having stated the above, the Single Judge turned their attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
43. First of all, the Single Judge decided to award the payments to the Claimant in BAM and not EUR,
as BAM is the main currency stipulated in the Employment Agreement. In this respect, the Single
Judge also pointed out that based on the evidence on file, the Claimant received his salaries in
BAM.
44. The Single Judge then observed that the remuneration still outstanding at the date of the
decision is equivalent to the salaries of June 2021 and July 2021 (pro rata 11 days) of the contract,
amounting to BAM 11,924.20.
45. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the
Single Judge decided that the Respondent is liable to pay to the Claimant the amounts which
were outstanding under the contract at the moment of the termination, i.e. BAM 11,924.20.
46. In addition, taking into consideration the Claimant’s request as well as the constant practice of
the DRC in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a.
on the outstanding amounts as follows:
- on the amount of BAM 8,801.20 from 1 July 2021 until the date of effective payment;
- on the amount of BAM 3,123.00 from 12 July 2021 until the date of effective payment.
47. 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, he 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.
48. In application of the relevant provision, the Single Judge held that he 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
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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.
49. 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 nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount
of compensation payable.
50. 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 BAM 102,491.40 (i.e. the residual value of the contract) serves as the basis
for the determination of the amount of compensation for breach of contract.
51. 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.
52. Indeed, the player found employment with FC Aktobe. The value of the pertinent employment
contract amounted to approximately KZT 17,533,523.61 per month. Therefore, the Single Judge
concluded that the player mitigated his damages in the total amount of KZT 17,533,523.61,
corresponding to BAM 68,665.90.
53. Subsequently, the Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to overdue
payables. In the case at hand, the Single Judge confirmed that the contract termination took
place due to said reason i.e. overdue payables by the club, and therefore decided that the player
shall receive additional compensation.
54. In this respect, the Single Judge decided to award the amount of additional compensation of
BAM 26,403.60, i.e. three times the monthly remuneration of the player.
55. Consequently, on account of all of the above-mentioned considerations and the specificities of
the case at hand, the Single Judge decided that the club must pay the amount of BAM 60,229.10
to the player (i.e. BAM 102,491.40 minus BAM 68,665.90 plus BAM 26,403.60), which was to be
considered a reasonable and justified amount of compensation for breach of contract in the
present matter.
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56. 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 12 July 2021 until the date of effective payment.
iii. Compliance with monetary decisions
57. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24bis
par. 1 and 2 of the Regulations, which stipulate that, with his 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.
58. 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.
59. 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. 24bis par. 2, 4, and 7 of the Regulations.
60. 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.
61. 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. 24bis par. 8 of
the Regulations.
d. Costs
62. 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, he decided that no procedural costs were to be imposed on the
parties.
63. 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.
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64. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief
made by any of the parties.
IV. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Joachim Adukor, is partially accepted.
2. The Respondent, FK Sarajevo, has to pay to the Claimant, the following amount:
- BAM 8,801.20 as outstanding remuneration plus 5% interest p.a. as from 1 July 2021 until the
date of effective payment;
- BAM 3,123.00 as outstanding remuneration plus 5% interest p.a. as from 12 July 2021 until
the date of effective payment;
- BAM 60,229.10 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 12 July 2021 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. 24bis of the Regulations on the Status and Transfer of Players (February 2021
edition), 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.
24bis par. 7 and 8 and art. 24ter 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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