Labour Disputes
Texto da decisão
REF FPSD-5075
Decision of the
Dispute Resolution Chamber
passed on 07 July 2022
regarding an employment-related dispute concerning the player Ismahil
Akinade
COMPOSITION:
DE WEGER, Frans (The Netherlands), Chairperson
ANDRADE, José Luis (Portugal), Member
LUKASEK, Peter (Slovakia), Member
CLAIMANT / COUNTER-RESPONDENT 1:
Ismahil Akinade, Nigeria
Represented by Tarik Trbić (Union of Professional Football
Players of Bosnia and Herzegovina) (SPFBiH)
RESPONDENT / COUNTER-CLAIMANT:
Telecom Egypt, Egypt
Represented by Sports Makers
COUNTER-RESPONDENT 2:
Sheikh Russell KC, Bangladesh
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REF FPSD-5075
I. Facts of the case
1.
On 10 October 2021, the Nigerian player, Mr Ismahil Akinade (hereinafter: the player or
the Claimant / Counter-Respondent 1), and the Egyptian club, Telecom Egypt (hereinafter:
the club or the Respondent / Counter-Claimant), concluded an employment contract valid
for three years i.e. until the end of the 2023/2024 season (hereinafter: the employment
contract).
2.
The employment contract was printed out and had blank spaces to be filled out by hand,
which they were.
3.
In accordance with clause 2 of the employment contract, the club undertook to pay the
player the total remuneration of USD 156,350, payable as follows:
a. 2021/2022 Season: total of USD 51,350, broken down as follows:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
USD 20,000 on 10 October 2021;
USD 6,350 on 15 October 2021;
USD 2,000 on 1 November 2021;
USD 3,000 on 1 December 2021;
USD 3,000 on 1 January 2022;
USD 3,000 on 1 February 2022;
USD 3,000 on 1 March 2022;
USD 3,000 on 1 April 2022;
USD 3,000 on 1 May 2022; and
USD 5,000 on 1 June 2022.
b. 2022/2023 Season: total of USD 50,000, broken down as follows:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
USD 25,000 on 1 August 2022;
USD 2,500 on 1 September 2022;
USD 2,500 on 1 October 2022;
USD 2,500 on 1 November 2022;
USD 2,500 on 1 December 2022;
USD 2,500 on 1 January 2023;
USD 2,500 on 1 February 2023;
USD 2,500 on 1 March 2023;
USD 2,500 on 1 April 2023; and
USD 5,000 on 1 May 2023.
c. 2023/2024 Season: total of USD 55,000, broken down as follows:
(i)
(ii)
USD 30,000 on 1 August 2023;
USD 2,500 on 1 September 2023;
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(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
USD 2,500 on 1 October 2023;
USD 2,500 on 1 November 2023;
USD 2,500 on 1 December 2023;
USD 2,500 on 1 January 2024;
USD 2,500 on 1 February 2024;
USD 2,500 on 1 March 2024;
USD 2,500 on 1 April 2024; and
USD 5,000 on 1 May 2024.
4.
Clause 4, par. 6 of the employment contract read as follows: “the player should bear the
taxes of this contract and other remuneration according to the law, the club shall deduct the
taxes from the player dues and transfer them to the taxes under his responsibility”.
5.
Clause 6 of the employment contract read as follows: “the last instalment which amounts
to USD 5,000 is paid to the player upon completion of his participation in 75% of the total
matches as a main participant. In the event that the club ascends to the top division the player
will receive an amount of USD 5,000 according to the club’s regulations”.
6.
On 13 January 2022, the player put the club in default and requested payment of EUR
16,350, corresponding to his salaries from October 2021 until January 2022 within the
following 15 days.
7.
On 30 January 2022, the player notified the club the termination of the employment
contract due to overdue payables.
8.
On 1 February 2022, the club replied to the player’s notice, in quoted verbatim:
“Your honor, I am pleased to send the best Greetings from the Chairman and members of
the Board of Directors of Telecom Egypt’s club “Al-Masrya LL Etisalat Club”
Kindly note that the player “Ismaheel Akinade” the first football team player of Telecom
Egypt’s club. “Al-Masrya ll Etisalat club” has been discontinued from the team’s training
starting from Monday, December 27, 2021 and has not attended regularly in any of the
training whether it’s friendly or official matches, but He comes when he receives his
monthly installment in addition to His monthly allowances. We contacted him and his
friend more than once through the administrators through phone calls to Attend the
training and to commit again to the club’s need for the player’s services in matches and
Training, but the player refused to communicate since.
So, We ask you to preserve the club's right from what the player does in terms of
absenteeism and Misconduct, and to send a warning letter to The player in addition to
make him abide by the training of The friendly and official matches”.
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9.
On 17 April 2022, the player and the Bangladeshi club, Club Sheikh Russell KC (hereinafter:
the Counter-Respondent 2) signed a new employment contract valid as from 20 April 2022
until 20 July 2022. Accordingly, the player is entitled to a monthly salary of USD 5,000.
II. Proceedings before FIFA
10. On 7 February 2022, the player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Claim of the player
11. In accordance with the player, he fulfilled his contractual duties as per the employment
contract, but the club failed to deliver a significant part of his remuneration. As such, he
claimed to have terminated their employment relationship with just cause, hence the club
shall be liable to the consequences that follow.
12. In particular, the player requested to be awarded the following amounts:
a. USD 16,350 as outstanding remuneration corresponding to his salaries of
October 2021 (USD 8,350), November 2021 (USD 2,000), December 2021 (USD
2,000), and January 2022 (USD 3,000), plus 5% interest p.a. as from their
respective due dates until the date of effective payment;
b. USD 140,000 as compensation for breach of contract corresponding to the
residual value of the employment contract (i.e. USD 35,000 for the remaining
2021/2022 season, USD 50,000 for the 2022/2023 season and USD 55,000 for
the 2023/2024 season), plus 5% interest p.a. as from 10 October 2021 until the
date of effective payment; and
c. USD 25,000 as additional compensation “in view of the egregious circumstances
[…] apart from not paying him his outstanding remuneration, the club expelled the
player from the rest of the team, barring him from executing his profession and did
not reply to any of the player’s default notices, leaving him in a state of great
uncertainty”. Additionally, the player requested 5% interest p.a. as from 10
October 2021 until the date of effective payment.
b. Reply and counterclaim of the club
13. On 15 March 2022, the club replied to the player’s claim and filed a counterclaim against
him.
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14. In its reply, the club argued that the employment contract was terminated by the player
without just cause and he shall be the one liable to the consequences that follow. The
club made the following remarks in connection with the termination:
a. all the financial obligations were fulfilled, and the player received the total
amount of USD 34,500 until the date of the termination;
b. the player’s notification dated 13 January 2021 was sent to a non-official email
of the club and not the one included in the Transfer Matching System (TMS);
c. the player was the one to breach the employment contract because he: (i)
terminated the employment contract within the protected period and without a
valid reason and due to the course of the season; (ii) was absent in trainings
sessions and official matches since 27 December 2021 without authorization;
and (iii) travelled and left the country without authorization; and
d. the player caused serious damages to the club, insofar as he was one of the best
players of the squad and it was not possible to register any other foreigner
player as a replacement.
15. In light of the foregoing, the club argued that it should be entitled to compensation for
breach of contract in the amount to USD 163,700, broken down as follows:
a. USD 121,850 as the residual value of the employment contract (i.e. USD 156,350
minus USD 34,500 paid to the player); plus
b. USD 150,000 as “loss of earnings (lucrum cessons)”, corresponding to the player’s
market value in accordance with the website Transfermakt.com; plus
c. USD 25,500 under the specificity of sports, insofar as the player’s “several and
serious breaches” should be considered as aggravating circumstances.
16. In addition, the club requested interest of 18% p.a. as from the due dates it claimed that
sporting sanctions should be imposed on the player in line with art. 17, par. 3 of the FIFA
Regulations on the Status and Transfer of Players (RSTP).
c. Reply to the counterclaim by the player
17. On 22 April 2022, the player filed his reply to the counterclaim of the club.
18. In this opportunity, the player disputed the proofs of payment filed by the club together
with its reply and accused it of forgery. Specifically, the player pointed out that all the
documents are undated and are of “extreme poor quality”. Moreover, he argued that the
signatures therein included “do not resemble the signatures on the employment contract”.
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19. Furthermore, the player referred to clause 4, par. 6 of the employment contract and
established that all payments should have been made net i.e. after deduction.
20. As to the alleged absences and bad behaviour, the player stressed that no evidence was
provided by the club in order to substantiate its position. Likewise, he highlighted that the
club only put him in default after the termination of the employment contract, and filed
additional evidence to demonstrate that the club was trying to exclude him from the rest
of the team after having been notified on the overdue payables.
21. Lastly, the player disputed the club’s argumentation as to the email address used in his
notice. In doing so, he outlined that the address used was the one indicated in the club’s
official media and shall be deemed as a valid means of communication.
22. With the above in mind, the player reiterated his requests for relief as per his statement
of claim.
d. Final comments of the club
23. On 12 May 2022, the club filed its final comments on this matter.
24. Initially, the club confirmed that the signatures and fingerprints added to the proof of
payment on file belonged to the player and reiterated that his entire remuneration was
delivered until the time of the termination. The club provide FIFA with the original copies
of such documents via DHL.
25. In continuation, the club challenged the player’s position as to his bad behaviour. It
argued, in this connection, that the player left the team’s group in the electronic
application WhatsApp, and did not provide any convincing evidence that he was excluded
from the rest of the team.
26. The club also insisted on his argumentation as to the email address used by the player to
deliver the default notices. As such, it maintained that the player should have been more
diligent and send the documentation via courier instead of using a non-official account.
27. Finally, the club acknowledged that the player had signed a new employment contract
with Club Sheikh Russell KC and requested it to be held jointly and severally liable to the
payment of compensation for the breach of contract. The club also claimed that sporting
sanctions should be imposed on the new club (cf. art. 17, par. 4 of the FIFA RSTP).
e. Position of the Counter-Respondent 2
28. On 16 May 2022, the Counter-Respondent 2 was invited to provide its comments on the
counterclaim of the club, to no avail.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
29. 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 7 February 2022 and
submitted for decision on 7 July 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.
30. 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, par
1 lit. b) of the FIFA RSTP (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 Nigerian player, an Egyptian club, and a Bangladeshi
club.
31. 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 7 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
32. 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 TMS.
c. Merits of the dispute
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33. 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.
i. Main legal discussion and considerations
34. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the player terminated the employment contract on
30 January 2021 due to overdue payables and the parties strongly dispute whether he
had just cause to do so, as well as the consequences that follow.
35. The Chamber noted that, in accordance with the player, the club failed to pay him his
entire remuneration from October 2021 until January 2022. The club, on the other hand,
filed proofs of payment (i.e. cash receipts) for a total amount of USD 34,350, which have
been challenged by the player on the grounds of forgery.
36. After a thorough analysis of the documentation on file, the Chamber was not comforted
that the signatures on the cash receipts match the player’s own. Moreover, the DRC added
that neither the original copies of the cash receipts provided by the club nor the
fingerprints therein included per se were conclusive to this extent.
37. The DRC did not fail to notice also that the calligraphy of such cash receipts appeared to
be the same one used in the employment contract – i.e. meaning that the person who
filled out the blank spaces in the employment contract was likely the same one that wrote
the cash receipts – but this calligraphy did not match the player’s own. Finally, the
Chamber found decisive that the proofs of payment filed by the club are undated.
38. The DRC remarked that clubs have to be diligent when paying players in cash and should
record the correspondent cash payment receipt. In the absence of a clear confirmation
that the signature found in the specimen in the receipt is authentic, it fell on the club to
further prove its position – for instance by filing additional documentation, such as
balances or internal accounting documents, to demonstrate that payment was
performed.
39. Considering the foregoing, the DRC decided that the club failed to meet its burden of
proof regarding the payments made to the player, and that as such the cash receipts
should be set aside.
40. It follows from the above, in the Chamber’s view, that at the time of the termination more
than two monthly salaries of the player were outstanding. Additionally, the player put the
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club in default and granted it a reasonable deadline (i.e. 15 days) in order to fulfil its
financial obligations, to no avail.
41. At this point, the DRC was mindful that the club challenged the delivery of the default
notice dated 13 January 2021 by saying that it was sent by the player to a different address
than the one included in the TMS. However, the Chamber determined that the club’s
argumentation should not succeed because: (i) the employment contract did not foresee
any specific email address for the delivery of default notices; (ii) the club confirmed that
the email address used by the player is publicly available; and (iii) the club did not
specifically challenge the receipt of the correspondence, but only argued that it was not
timely seen by its representatives – which, in DRC’s opinion, cannot be attributable to the
player.
42. Thus, as per its solid jurisprudence, the DRC decided that such persistent and substantial
non-compliance of the contractual obligations by the club could justify the unilateral
termination of the employment contract as well as it could hold the club liable for the
breach. Based on the factual and contractual situation, the Chamber decided that the
player had just cause to terminate the employment contract in line with art. 14bis of the
Regulations.
43. Consequently, the Chamber stressed that the player should be entitled to both
outstanding remuneration and compensation for breach of contract as follows.
ii. Consequences
44. 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
club.
45. In accordance with the general legal principle of pacta sunt servanda, the Chamber initially
decided that the club should be liable to pay to the player the amounts which were
outstanding under the contract at the moment of the termination, as follows:
a.
b.
c.
d.
e.
USD 20,000 due by 10 October 2021;
USD 6,350 due by 15 October 2021;
USD 2,000 due by 1 November 2021;
USD 3,000 due by 1 December 2021; and
USD 3,000 due by 1 January 2022.
46. 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 him interest at the rate of 5%
p.a. on the outstanding amounts as from one day after each respective due date until the
date of effective payment.
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47. 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.
48. 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.
49. 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.
50. 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 EUR 122,000 (i.e. the remaining remuneration for the
2021/2022 season plus the entire remuneration for the 2022/2023 and 2023/2024
seasons) serves as the basis for the determination of the amount of compensation for
breach of contract.
51. 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.
52. Indeed, the player found employment with the Counter-Respondent 2. In accordance with
the pertinent employment contract, the player was entitled to USD 5,000 per month.
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Therefore, the Chamber concluded that the player mitigated his damages in the total
amount of USD 15,000, that is, 3 times USD 5,000.
53. 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.
54. In this respect, the DRC remarked that in principle the player could be awarded the
amount of additional compensation of USD USD 15,405, i.e. three times the monthly
remuneration of the player amounting to USD 5,135. The Chamber stressed however that
per art. 17 of the Regulations the total amount of compensation awarded (including any
mitigation and additional compensation) cannot exceed the original residual value of the
contract. Accordingly, the Chamber decided to award USD 15,000 to the player as
additional compensation.
55. 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 122,000 to the player (i.e. USD 122,000 minus USD 15,000 plus USD 15,000), which
was to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
56. 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 the claim until the date of effective
payment.
iii. Compliance with monetary decisions
57. 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.
58. 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.
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59. Therefore, bearing in mind the above, the DRC decided that the club 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 the club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
60. The club 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.
61. 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
62. 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.
63. 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.
64. 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 / Counter-Respondent 1, Ismahil Akinade, is partially accepted.
2.
The Respondent / Counter-Claimant, Telecom Egypt, has to pay to the Claimant / CounterRespondent 1, the following amount(s):
- USD 20,000 as outstanding remuneration plus 5% interest p.a. as from 11 October 2021
until the date of effective payment;
- USD 6,350 as outstanding remuneration plus 5% interest p.a. as from 16 October 2021
until the date of effective payment;
- USD 2,000 as outstanding remuneration plus 5% interest p.a. as from 2 November 2021
until the date of effective payment;
- USD 3,000 as outstanding remuneration plus 5% interest p.a. as from 2 December 2021
until the date of effective payment;
- USD 3,000 as outstanding remuneration plus 5% interest p.a. as from 2 January 2022
until the date of effective payment;
- USD 122,000 as compensation for breach of contract plus 5% interest p.a. as from 7
February 2022 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent 1 are rejected.
4.
The counterclaim of the Respondent / Counter-Claimant is rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
6.
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 / Counter-Claimant 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.
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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.
7.
The consequences shall only be enforced at the request of the Claimant / CounterRespondent 1 in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on
the Status and Transfer of Players.
8.
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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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