Labour Disputes
Texto da decisão
REF FPSD-4999
Decision of the
Dispute Resolution Chamber
passed on 7 April 2022
regarding an employment-related dispute concerning the player Daniel
Adzigodi-Lomotey Agboe
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Michele Colucci (Italy), member
Jerome Perlemuter (France), member
CLAIMANT:
Daniel Adzigodi-Lomotey Agboe, Ghana
Represented by Yussif Alhassan Chibsah
RESPONDENT:
SSPA Black Eagles Essetif, Algeria
Page 2
REF FPSD-4999
I.
Facts of the case
1.
On 30 January 2021, the Ghanaian player, Daniel Adzigodi-Lomotey Agboe (hereinafter: the
Claimant or player), and the Algerian club, SSPA Black Eagles Essetif (hereinafter: the Respondent
or club) signed an employment contract (hereinafter: contract) valid as from the date of signature
until 30 January 2024.
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly salary of
Algerian Dinar (DZD) 1,060,860.44 (approx. USD 7,400).
3.
On 11 January 2022, the Claimant put the Respondent in default and requested payment of
DZD 8,486,883.52, corresponding to 8 monthly salaries, within 10 days.
4.
On 24 January 2022, the Claimant terminated the contract with the Respondent due to the
outstanding remuneration.
5.
According to the information contained in the Transfer Matching System (TMS), the player
remained unemployed up to date.
II. Proceedings before FIFA
6.
On 1 February 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
7.
In his claim, the Claimant requested payment of the following monies:
DZD 8,486,883.52 (approx. USD 60,000), corresponding to the salaries between May
2021 until December 2021, plus 5% interest p.a. as of the due dates (1st day of the
following month);
DZD 1,750.08 as reimbursement for medical costs plus 5% interest p.a. as of 9
December 2021;
DZD 26,521,511 (approx. USD 185,340) as compensation for breach of contract,
corresponding to the residual value of the contract, plus 5% interest p.a.;
USD 5,000 as legal costs.
8.
The player maintained that he had just cause to terminate the contract due to the outstanding
remuneration and previous default notice. As a conclusion, the Claimant argued being entitled
to compensation for breach of contract in the amount of the residual value of the contract.
9.
Furthermore, the player held being entitled to reimbursement for his medical costs. In this
regard, the player submitted an invoice for the medical costs.
Page 3
REF FPSD-4999
b. Position of the Respondent
10. The Respondent failed to reply to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. 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 01 February 2022 and submitted for decision
on 7 April 2022. Taking into account the wording of art. 34 of the October 2021 edition of the
Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
12. 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 (March 2022), 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 an Algerian club.
13. 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 (March 2022), and considering that the present
claim was lodged on 01 February 2022, the August 2021 edition of said regulations (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
14. 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
15. 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.
Page 4
REF FPSD-4999
i. Main legal discussion and considerations
16. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the Claimant’s argumentation that he terminated the contract with just cause,
after 8 monthly salaries and a reimbursement of medical costs remained outstanding despite a
default notice.
17. The Respondent, for its part, failed to present its response to the claim of the player, in spite of
having been invited to do so. In this way, the Chamber considered that the Respondent
renounced its right of defence and, thus, accepted the allegations of the Claimant.
18. Furthermore, as a consequence of the aforementioned consideration, the Chamber concurred
that in accordance with art. 21 par. 1 of the Procedural Rules it shall take a decision upon the
basis of the documents already on file, in other words, upon the statements and documents
presented by the Claimant.
19. In this context, the Chamber acknowledged that it its task was to determine as to whether the
contract was terminated by the Claimant with or without just cause and to decide on the
consequences thereof.
20. The Chamber concluded that the Respondent failed to demonstrate that it remitted the claimed
amounts and that the outstanding remuneration claimed by the player remained uncontested.
21. Consequently, on account of the above, considering that the Respondent had thus repeatedly
and for a significant period of time been in breach of its contractual obligations towards the
Claimant, the Chamber decided that the Claimant had just cause to unilaterally terminate the
employment contract on 24 January 2022 and that, as a result, the Respondent is to be held
liable for the early termination of the employment contact with just cause by the Claimant.
ii. Consequences
22. Having stated the above, the members of the Chamber turned their attention to the question
of the consequences of such unjustified breach of contract committed by the Respondent.
23. The Chamber observed that the outstanding remuneration at the time of termination, coupled
with the specific requests for relief of the player, are equivalent to 8 monthly salaries (DZD
8,486,883.52; May until December 2021) under the contract as well as a reimbursement of
medical costs (i.e. DZD 1,750.08).
24. In accordance with the above-mentioned considerations, the Chamber decided that, in
accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to
pay to the Claimant outstanding remuneration in the total amount of DZD 8’488’633.60, plus
5% interest p.a. as of the respective due dates.
Page 5
REF FPSD-4999
25. Having stated the above, the Chamber turned to the calculation of the amount of compensation
payable to the player by the club in the case at stake. In doing so, the 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, 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 as to
whether the pertinent employment contract contained a provision by means of which the parties
had beforehand agreed upon an amount of compensation payable by the contractual parties in
the event of breach of contract. In this regard, the Chamber established that no such
compensation clause was included in the employment contract at the basis of the matter at
stake.
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 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.
28. Bearing in mind the foregoing as well as the claim of the player, the Chamber 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 Chamber concluded that
the amount of DZD 26’521’511 (i.e. 25 months; January 2022 until and including January 2024)
serves as the basis for the determination of the amount of compensation for breach of contract.
29. In continuation, the Chamber 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.
30. In this respect, the Chamber noted that the Claimant had not found new employment and
therefore was not able to mitigate his damages.
31. Consequently, on account of the above-mentioned considerations, the Chamber decided that
the Respondent must pay the amount of DZD 26’521’511 as compensation for breach of
contract to the Claimant, which is considered by the Chamber to be a fair and reasonable
amount.
Page 6
REF FPSD-4999
32. Lastly, 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 on said compensation at
the rate of 5% p.a. as of 1 February 2022 until the date of effective payment.
iii. Compliance with monetary decisions
33. Finally, 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.
34. 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.
35. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the full
amount due (including all applicable interest) to the Claimant within 45 days of notification of
the decision, failing which, at the request of the Claimant, a ban from registering any new
players, either nationally or internationally, for the maximum duration of three entire and
consecutive registration periods shall become immediately effective on the Respondent in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
36. 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.
37. 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.
d. Costs
38. 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.
39. 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.
40. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any
of the parties.
Page 7
REF FPSD-4999
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Daniel Adzigodi-Lomotey Agboe, is partially accepted.
2.
The Respondent, SSPA Black Eagles Essetif, has to pay to the Claimant, the following amount(s):
- Algerian Dinar (DZD) 1,060,860.44 as outstanding remuneration plus 5% interest p.a. as from 1 June 2021
until the date of effective payment;
- DZD 1,060,860.44 as outstanding remuneration plus 5% interest p.a. as from 1 July 2021 until the date of
effective payment;
- DZD 1,060,860.44 as outstanding remuneration plus 5% interest p.a. as from 1 August 2021 until the date
of effective payment;
- DZD 1,060,860.44 as outstanding remuneration plus 5% interest p.a. as from 1 September 2021 until the
date of effective payment;
- DZD 1,060,860.44 as outstanding remuneration plus 5% interest p.a. as from 1 October 2021 until the date
of effective payment;
- DZD 1,060,860.44 as outstanding remuneration plus 5% interest p.a. as from 1 November 2021 until the
date of effective payment;
- DZD 1,060,860.44 as outstanding remuneration plus 5% interest p.a. as from 1 December 2021 until the
date of effective payment;
- DZD 1,060,860.44 as outstanding remuneration plus 5% interest p.a. as from 1 January 2022 until the date
of effective payment;
- DZD 1,750.08 as outstanding remuneration plus 5% interest p.a. as from 9 December 2021 until the date of
effective payment;
- DZD 26,521,511 as compensation for breach of contract plus 5% interest p.a. as from 1 February 2022 until
the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in the enclosed
Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 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. 24 par.
7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 8
REF FPSD-4999
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).
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
Page 9