Labour Disputes
Texto da decisão
REF. FPSD-13194
Decision of the
Dispute Resolution Chamber
passed on 22 April 2024
regarding an employment-related dispute concerning
the player Alain Thierry Akono Akono
BY:
Lívia SILVA KÄGI (Brazil), Deputy Chairperson
Andre DOS SANTOS MEGALE (Brazil), member
Michele COLUCCI (Italy), member
CLAIMANT:
Alain Thierry Akono Akono, Cameroon
Represented by Lamjed Belkahia
RESPONDENT:
ALTARAJI CLUB, Saudi Arabia
Represented by Sport Makers
pg. 2
REF. FPSD-13194
I. Facts of the case
1.
On 29 June 2023, the player from Cameroon, Alain Thierry Akono Akono (hereinafter:
Claimant/Counter-Respondent or player) and the Saudi club, ALTARAJI CLUB (hereinafter:
club or Respondent/Counter-Claimant) concluded an employment contract (hereinafter:
contract) valid as from 1 July 2023 until 31 May 2024.
2.
According to the contract, the Respondent undertook to pay the Claimant the following
monies:
- USD 11,818 as monthly salary;
- USD 20,000 as “advance payment” due on 1 July 2023;
- USD 20,000 as “advance payment” due on 31 January 2024.
3.
Art. 5.5 of the contract reads as follows:
4.
On 9 July 2023, the player requested payment of the advance payment and to receive a
copy of the signed contract.
5.
On 11 September 2023, the player requested assistance regarding his expiring
working/resident permit and he requested payment of his salary for August 2023 plus a
winning bonus.
6.
On 7 October 2023, the player requested assistance regarding his expiring
working/resident permit and he requested payment of his salary for August and September
2023 plus a winning bonus as well as payments for a rental car and air tickets.
7.
On 1 November 2023, the player put the club in default and requested payment of USD
35,454 (Salaries of August until October 2023) within 15 days.
8.
On 16 December 2023, the player terminated the contract with the club due to the
outstanding amounts.
9.
On 23 December 2023, the player signed an employment contract with the Libyan club,
Swehly Sports Club valid as from 8 January 2024 until 15 July 2025, including the following
payments:
- USD 50,000 upon signing the contract;
- USD 20,000 on 15 April 2024;
- USD 20,000 on 15 July 2024;
- USD 20,000 as monthly salary as of September 2024.
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REF. FPSD-13194
II. Proceedings before FIFA
10. On 30 December 2023, 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. In his claim, the player requested payment of the following monies:
- USD 11,818 as outstanding salary for September 2023;
- USD 11,818 as outstanding salary for October 2023;
- USD 8,085 as outstanding salary for November 2023;
- USD 6,302 as outstanding pro rata salary for December 2023 (16 days);
- Saudi Riyal (SAR) SAR 16,250 (approx. USD 4,300) as unpaid transportation
allowance (SAR 2,500 per month);
- SAR 1,041.31 (approx. USD 280) as air tickets/Visa expenses;
- USD 84,999 as compensation for breach of contract (residual value);
- USD 35,454 as additional compensation.
12. In this framework, the player argued that he had just cause to terminate the contract in
accordance with art. 14 bis RSTP due to the outstanding remuneration mentioned above.
b. Position of the Respondent
13. In its reply, the club rejected the claim.
14. The club pointed out that the player acted in bad faith and got a copy of the contract and
was provided with a car. Further, the club held that he got a residence permit, but that his
wife was still in the process and that the club was under no obligation to get this permit.
15. The club held that he was not entitled to any bonuses and that his outstanding dues would
not entitle him to stop rendering his services.
16. As to the expenses, the club pointed out that he was not entitled to a specific allowance for
a car and that he failed to submit any evidence of a paid amount.
17. As to the residence permit, the club held that it was not expired and he failed to submit
any evidence of the costs.
18. The club acknowledged that it faced a financial crisis due to late payments by the
government, however it pointed out that it remitted the salary for August 2023.
19. The club held that it is not in the club’s hand when the ministry remits the payments to the
club and therefore it is a force majeure situation.
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REF. FPSD-13194
20. According to the club, it acted in good faith.
21. On account of the above, the club argued that the player had no just cause to terminate
the contract.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. 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 30 December 2023 and
submitted for decision on 22 April 2024. Taking into account the wording of art. 34 of the
March 2023 edition of the Procedural Rules Governing the Football Tribunal (hereinafter:
the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to
the matter at hand.
23. 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 (February 2024 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player and a club.
24. 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 (February 2024 edition), and
considering that the present claim was lodged on 30 December 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
25. The Chamber wished to emphasize that it took note of the club’s intention to lodge a
counterclaim against the player, but that after the club was requested to complete its
submission in accordance with art. 18 par. 1 of the Procedural Rules and since it failed to
do so within the given-time limit, the Chamber declared the counterclaim as withdrawn (in
accordance with art. 18 par. 2 of the Procedural Rules).
b. Burden of proof
26. 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).
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REF. FPSD-13194
c. Merits of the dispute
27. 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
28. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute that the player had just
cause to terminate the contract.
29. In this context, the Chamber acknowledged that its task was to decide if the player indeed
had just cause to terminate the contract or not, and to decide on the consequences
thereof.
30. The Chamber duly noted that according to the player, he terminated the contract with just
cause due to outstanding remuneration.
31. The DRC further acknowledged that the Respondent argued that the player acted in bad
faith and miscalculated his entitlement and therefore showed bad faith. Further, the club
held that the financial crisis was caused by force majeure. Therefore, it requested to reject
the claim.
32. The Claimant claims not having received his remuneration corresponding to the salaries of
September and October 2023 as well as expensed. Furthermore, the Claimant has provided
written evidence of having put the Respondent in default on 1 November 2023, i.e. at least
15 days before unilaterally terminating the contract on 16 December 2023.
33. The Chamber 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. Nonetheless, no such evidence was provided. The Respondent’s argumentation
has to be rejected. According to the DRC, there is no force majeure and a financial crisis
does not constitute a reason to delay payments.
34. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate
the contract, based on art. 14bis of the Regulations.
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REF. FPSD-13194
ii. Consequences
35. 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.
36. As to the outstanding remuneration, the Chamber pointed out that the player is entitled to
his salaries for September until December 2023, which amounts to USD 43,539 (3x USD
11,818 plus USD 8,085, since one payment was partially acknowledged.
37. 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
43,539.
38. 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.
39. 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.
40. 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.
41. 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 59,090 (i.e. 5x USD 11,818, January 2024 until May 2024)
serves as the basis for the determination of the amount of compensation for breach of
contract.
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REF. FPSD-13194
42. 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.
43. Indeed, the player found employment with the Libyan club, Swehly SC. In accordance with
the pertinent employment contract, the player was entitled to the following amounts:
USD 50,000 upon signing the contract;
USD 20,000 on 15 April 2024;
USD 20,000 on 15 July 2024;
USD 20,000 as monthly salary as of September 2024.
44. Therefore, the Chamber concluded that the player fully mitigated his damages during the
period between January and May 2024.
45. 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.
46. In this respect, the DRC decided to award the amount of additional compensation of USD
35,454, i.e. three times the monthly remuneration of the player.
47. 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 35,454 to the player (i.e. USD 59,090 minus USD 70,000 plus USD 35,454), which
was to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
iii. Compliance with monetary decisions
48. 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.
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REF. FPSD-13194
49. 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.
50. 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.
51. 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.
52. 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
53. 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.
54. 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.
55. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-13194
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Alain Thierry Akono Akono, is partially accepted.
2.
The Respondent, ALTARAJI CLUB, must pay to the Claimant the following amount(s):
- USD 43,539 as outstanding remuneration;
- USD 35,454 as compensation for breach of contract without just cause.
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.
The counterclaim of the Respondent, ALTARAJI CLUB, is inadmissible.
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 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.
7.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-13194
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
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