Labour Disputes
Texto da decisão
REF FPSD-5972
Decision of the
Dispute Resolution Chamber
passed on 6 September 2022
regarding an employment-related dispute concerning the player
BENJAMIN AFUTU
COMPOSITION:
Omar ONGARO (Italy), Deputy Chairperson
Stijn BOEYKENS (Belgium), member
Daan DE JONG (the Netherlands), member
CLAIMANT:
Benjamin Afutu, Ghana
Represented by PFA of Ghana
RESPONDENT:
Eastern Company SC, Egypt
Represented by Nehad Hagag
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I. Facts of the case
1.
On 5 October 2021, the Ghanaian player, Benjamin Afutu (hereinafter: Claimant or player) and
the Egypt club, Eastern Company SC (hereinafter: club or Respondent) concluded an
employment contract (hereinafter: contract) valid as from the date of the signature until the
“end of season 2023/2024”.
2.
According to the contract, the Respondent undertook to pay the Claimant the following monies:
- USD 21,000 on 5 October 2021;
- USD 3,150 as monthly instalments payable between 1 November 2021 and 1 August
2022 (10x);
- USD 17,500 on 1 September 2022;
- USD 90,000 for the season 2022/2023;
- USD 110,000 for the season 2023/2024.
3.
On 12 April 2022, the Claimant put the Respondent in default and requested payment of USD
16,800 within 10 days (note: letter is on file). Said amount corresponds to:
- USD 9,450 as salaries due between 1 February 2022 and 1 April 2022 (3x USD 3,150);
- USD 6,000 as outstanding amount from the instalment due on 5 October 2021;
- USD 1,350 as deducted amounts from the salaries due on 1 December 2021 and 1
January 2022 (2x USD 675 were deducted).
4.
On 25 April 2022, the Claimant put the club in default again and requested payment of USD
16,800 within 5 days. Furthermore, the player requested to immediately return his passport.
5.
On 4 May 2022, the player terminated the contract with the club due to the outstanding
remuneration. Moreover, in this letter, the player requested the club again to immediately
return his passport.
6.
On 1 August 2022, the player signed a new employment contract with the Saudi club, Al
Taqadom FC, valid as from 1 August 2022 until 31 May 2023, including the following payments:
-
USD 20,000 on 28 August 2022;
-
USD 3,000 as monthly salary between August 2022 and May 2023.
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II. Proceedings before FIFA
7.
On 6 May 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
8.
In his claim, the player requested payment of the following monies:
- USD 6,000 as outstanding amount from the instalment due on 5 October 2021, plus 5%
interest as of the due date;
- USD 12,600 as salaries due between 1 February 2022 and 1 May 2022 (4x USD 3,150),
plus 5% interest as of the due dates;
- USD 1,350 as deducted amounts from the salaries due on 1 December 2021 and 1
January 2022 (2x USD 675 were deducted), plus 5% interest as of the due dates;
- USD 226,950 as compensation for breach of contract, corresponding to the residual
value of the contract, plus 5% interest as of 4 May 2022;
- USD 45,000 as “compensation for moral damages”, plus 5% interest as of 4 May 2022.
9.
In this context, the player held having had just cause to terminate the contract and the
agreement, in accordance with art. 14bis RSTP.
10. Furthermore, the Claimant pointed out that the club retained his passport so he was unable to
leave the country, which constitutes a severe violation of the player’s rights.
11. Due to the club’s violations, the player requested additional compensation of 6 monthly salaries
if he would find new employment and mitigate his damages.
b. Position of the Respondent
12. In its reply, the Respondent rejected the claim.
13. The club pointed out that the player was absent from training as of 1 May 2022 and that he
“intentionally refuses receiving his salary in an attempt to have any pretext to terminate his contract”.
14. In this context, the Respondent held that the cheques with the player’s salary were available,
but the player did not pick them up.
15. Therefore, the club argued that the player had no just cause to terminate the contract.
16. Regarding the player’s passport, the club maintained that it was returned to the player on 11
May 2022.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. 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 6 May 2022 and submitted for decision on 6
September 2022. Taking into account the wording of art. 34 of the June 2022 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.
18. 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 (July 2022 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 Ghanaian player and an Egyptian club.
19. 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 (July 2022 edition), and considering
that the present claim was lodged on 6 May 2022, the March 2022 edition in force on the date
of claim edition of said regulations (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
b. Burden of proof
20. 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
21. 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
22. The foregoing having been established, the DRC moved to the substance of the matter, and
took note of the fact that the parties dispute 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.
23. In this context, the Chamber acknowledged that its 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 formal pre-requisites of art. 14bis of the Regulations
had in fact been fulfilled, in the context of the specifities of the matter at hand.
24. In this framework, the DRC 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).
25. The Chamber noted that the Claimant claims not having received his remuneration
corresponding to 4 monthly salaries between February 2022 until May 2022 as well as an
outstanding amount from the instalment due on 5 October 2021.
26. Furthermore, the Chamber noted that the Claimant has provided written evidence of having
put the Respondent in default on 12 April 2022 as well as 25 April 2022, i.e. in total at least 15
days before unilaterally terminating the contract on 4 May 2022 (for more than 2 monthly
salaries).
27. The DRC also noted that in the case at hand the Respondent bore the burden of proving that it
indeed complied with the financial terms of the contract concluded between the parties. The
club did not submit corroborating evidence that the outstanding amounts were remitted.
28. Furthermore, the members of the Chamber noted that the Respondent did not dispute that the
claimed outstanding remuneration remained unpaid as such, but held that cheques with his
payments were available at all times.
29. Moreover, taking into account that the club failed to proof that the claimed payments of more
than 4 monthly salaries were remitted to the player, the Chamber concluded that the player
had just cause to terminate the contract on 4 May 2022, based on art. 14bis of the Regulations
ii. Consequences
30. 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.
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31. The Chamber observed that the outstanding remuneration at the time of termination, coupled
with the specific requests for relief of the player amount to USD 19,950 in total, composed of
four monthly salaries (February 2022 until May 2022; USD 12,600), an outstanding amount of
the instalment due on 5 October 2021 (USD 6,000) and the amounts deducted from the salaries
due in December 2021 and January 2021 (USD 1,350).
32. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber 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. USD 19,950.
33. In addition, taking into consideration the Claimant’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5%
p.a. on the outstanding amounts as from the respective due dates until the date of effective
payment.
34. 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.
35. 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.
36. 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.
37. 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 USD 226,950 serves as the basis for the determination of the amount of
compensation for breach of contract.
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38. 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.
39. Indeed, the player found employment with the Saudi club, Al Taqadom. In accordance with the
pertinent employment contract, the player was entitled to USD 3,000 per month, as well as to
a fixed payment of USD 20,000 due on 28 August 2022. Therefore, the Chamber concluded that
the player mitigated his damages in the total amount of USD 50,000, that is, 10 times USD 3,000
plus USD 20,000.
40. Subsequently, the Chamber 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 Chamber 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.
41. In this respect, the DRC decided to award the amount of additional compensation of USD 9,450,
i.e. three times the monthly remuneration of the player.
42. Consequently, on account of all of the above-mentioned considerations and the specificities of
the case at hand, the Chamber decided that the club must pay the amount of USD 186,400 to
the player (i.e. USD 226,950 minus USD 50,000 plus USD 9,450), which was to be considered a
reasonable and justified amount of compensation for breach of contract in the present matter.
43. 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 the date of claim until the date of effective payment.
iii. Compliance with monetary decisions
44. 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.
45. 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.
46. 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
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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.
47. 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.
48. 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
49. 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.
50. 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.
51. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, BENJAMIN AFUTU, is partially accepted.
2.
The Respondent, Eastern Company SC, has to pay to the Claimant, the following amount(s):
- USD 6,000 as outstanding remuneration plus 5% interest p.a. as from 6 October 2021 until the
date of effective payment;
- USD 675 as outstanding remuneration plus 5% interest p.a. as from 2 December 2021 until the
date of effective payment;
- USD 675 as outstanding remuneration plus 5% interest p.a. as from 2 January 2022 until the date
of effective payment;
- USD 3,150 as outstanding remuneration plus 5% interest p.a. as from 2 February 2022 until the
date of effective payment;
- USD 3,150 as outstanding remuneration plus 5% interest p.a. as from 2 March 2022 until the date
of effective payment;
- USD 3,150 as outstanding remuneration plus 5% interest p.a. as from 2 April 2022 until the date
of effective payment;
- USD 3,150 as outstanding remuneration plus 5% interest p.a. as from 2 May 2022 until the date
of effective payment;
- USD 186,400 as compensation for breach of contract plus 5% interest p.a. as from 06 May 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, 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
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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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