Labour Disputes
Texto da decisão
REF FPSD-5345
Decision of the
Dispute Resolution Chamber
passed on 4 May 2022
regarding an employment-related dispute concerning the player Agyei Enock Atta
BY:
Stella MARIS JUNCOS (Argentina), Single Judge of the DRC
CLAIMANT:
Ahyei Enock Atta, Ghana
RESPONDENT:
Horoya Athletic Club, Guinea
Represented by Mr Prosper Abega
REF FPSD-5345
I Facts
1. On 26 July 2019, the player Agyei Enock Atta and Horoya Athletic Club concluded an employment
contract valid as from the date of signature until 30 June 2024.
2. According to Article 3 of the Employment Contract, the Club shall pay to the Player the following:
« En rémunération de son activité au sein et pour le compte du HAC e dans les conditions prévues
par les lois, règlements et conventions collectives en vigueur, le Joueur percevra un salaire mensuel
de 46 000 000 francs guinéen soit 5 000 US Dollars »
Free Translation into English:
« As remuneration for his activity within and on behalf of the HAC and under the conditions
provided for by the laws, regulations and collective agreements in force, the Player shall receive a
monthly salary of 46,000,000 Guinean francs, i.e. 5,000 US Dollars »
3. Art. 5 of the contract stipulated the following:
« Article 5 - FIN DE CONTRAT
Au terme du present contrat fixe pour la duree prevue, le Joueur ne pourra prétendre à aucune
indemnité autre que le solde de son salaire et accessoires prevus au present contrat »
Free Translation into English:
Article 5 - END OF CONTRACT
At the end of the present contract, which is fixed for the period provided for, the Player shall not be
entitled to any compensation other than the balance of his salary and accessories provided for in
the present contract.
4. Art. 11 of the contract stipulated the following:
“En cas de litige, celui-ci sera soumis à une procédure de conciliation préalable devant la
Commission juridique de la Ligue Guinéenne de Football Professionnel, SANS PRÉJUDICE des droits
des cocontractants de saisir le juge compétent qui est déterminé territorialement comme celui du
lieu du siège social du Club”.
Free Translation into English:
"In the event of a dispute, it shall be submitted to a preliminary conciliation procedure before the
Legal Committee of the Guinean Professional Football League, WITHOUT PREJUDICE of the rights of
the co-contracting parties to refer the matter to the competent court, which shall be determined
territorially as that of the place of the Club's registered office.
5. On 3 February 2022, the player via his lawyer sent a default notice to the respondent indicating the
following:
« Notre client, M. Agyei Enock Atta nous a mandaté dans ce dossier car malgré les rappels qu’il
vous a adressé directement continue an’avoir pas encore été payé des sommes excédant deux mois
de salaire. Cette dette est d’un montant qu’entraine selon le règlement FIFA juste motif pourrésilier
son contrat prematurement (…) ».
Free Translation into English :
REF FPSD-5345
« Our client, Mr. Agyei Enock Atta, has mandated us in this case because despite the reminders he
has sent you directly continues not to have been paid amounts exceeding two months of salary.
This debt is of an amount which, according to FIFA regulations, is just cause for premature
termination of his contract (…) ».
6. On 18 February 2022, the player sent a termination letter indicating the following:
« Nous faisons référence à notre lettre du 3 février restée sans réponse. Votre club n’a pas satisfait
aucun de tous les paiements dus au Joueur. Par conséquent, comme on vous avait déjà prévenu,
nous sommes contraints de considérer le contrat en question comme résilié avec juste motif de la
part du Joueur et on saisira prochainement les organes juridictionnels de la FIFA à votre encontre si
toutes ses rémunérations impayés, intérêts applicables et la value résiduelle du contrat n’est pas
satisfaite en sa totalité dans les prochains 10 jours.
(…) ».
Free Translation into English:
« We refer to our letter of 3 February which has not been answered. Your club has not met any of the
payments due to the Player.
Therefore, as we have already warned you, we are forced to consider the contract in question as
terminated with just cause on the part of the Player and we will shortly bring a case against you before
the FIFA judicial bodies if all his outstanding payments, applicable interest and the residual value of the
contract is not paid in full within the next 10 days (...) ».
7. On 11 April 2022, the player informed FIFA that he remained unemployed.
8. On 4 March 2022, Agyei Enock Atta lodged a claim before FIFA for outstanding remuneration and
requested the following:
USD 10,000 as outstanding remuneration, detailed as follows:
- Salary of December 2021: USD 5,000;
- Salary of January 2022: USD 5,000.
USD 145,000 as compensation, detailed as follows:
- 2022: 5 months x USD 5,000 = USD 25,000
- 2023: 12 months x USD 5,000 = USD 60,000
- 2024: 12 months x USD 5,000 = USD 60,000
3. The Claimant further requested the payment of additional compensation for “egregious
circumstances”.
9. The Claimant requested to rule that the Club shall bear all legal fees incurred by the
Player, in addition to the totality of the FIFA’s administrative and procedural costs.
10. In its reply to the claim, the Respondent rejected the player’s arguments.
11. In this respect, the club argued that the player “brutally” left the club during its participation of
match at the CAF Champions League.
12. The club considered that the player failed to prove that the club did not pay its remuneration.
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13. In this respect, the club provided a document from “United Bank for Africa”, indicating the
following payments:
- Salary transfer January 2022 made on 25 February 2022
- Salary transfer December 2021 made on 11 January 2022
- Salary payment November 2021 made on 09 March 2022 by cash deposit
- Salary transfer October 2021 made on 14 December 2021
- Salary transfer September 2021 made on 3 November 2021
- Salary transfer August 2021 made on 31 August 2021
14. As a result, the club considered that the player should pay compensation for breach of contract
without just cause in the amount of USD 125,000, detailed as follows:
“The club paid a transfer compensation equivalent to USD 75,000 for the player.
The club lost the possibility to transfer the young player against the payment of a transfer
compensation that could have been valued at USD 150,000.
The player's value is estimated in March 2022 by Transfermark at EUR 25,000, which
25,000, a sum that does not appear to be in line with his true value, which is derived in particular
from his initial transfer compensation.
transfer fee.
The chances of finding a young striker of this quality are extremely low
The chances of finding a young striker of this quality are extremely low for the club and the cost of
replacing such a player is difficult to estimate.
The residual value of the remaining contract should be taken into account, i.e.
sum of :
▪ 25 x 5000 USD = 125,000 USD corresponding to the period between
March 2022 to June 2024.”
15. The club further requested the suspension of the player for 5 months, as well as the payment of the
legal costs in the amount of CHF 5,000.
16. In his replica, the player insisted in the jurisdiction of FIFA by noting that art. 11 of the contract only
stipulates that the prior conciliation procedure before the Legal Committee of the Guinean Professional
Football League is not mandatory, and that, in any case, the conciliation procedure is not meant to
issue a final and binding decision
17. As to the default notice, the player argued that no provision of the FIFA RSTP states the obligation to
mention the exact months and amounts in relation to the pending salaries.
18. The player provided a summary from his bank account movements, stating that he was paid as follows:
1). April salary on 10th June 2021;
2). May salary on 12th July 2021;
3). August salary on 30th of August 2021;
4). July salary on 4th of October 2021;
5). September salary on 3rd of November 2021;
6). October salary on the 14th of December 2021;
7). December salary on the 11th of January 2022.
19. The player insisted that, when it sent its termination notice on 3 February 2022, the salaries of June
2021, November 2021 and January 2022 were due.
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20. According to the player, only after the termination notice was issued by the Player on the 18th of
February the Club made a further payment corresponding to salary of January 2022.
21. The player therefore argued that “what is certain and obvious is that [he] had not received payment of
more than two months' wages.
22. The Claimant acknowledged that the salary of November 2021 was paid on 10th of March 2022 and
the salary of January 2022 was paid on 25 February 2022.
23. In relation to the salary of August 2021, the Claimant argued that “the Club paid by cash the wage
due to the Player on the same date it paid the salary related to November 2021.
24. As a result, the Claimant requested the payment of USD 145,000 as compensation.
25. Despite being invited to do so, the club failed to provide its duplica.
REF FPSD-5345
II Considerations of the Dispute Resolution Chamber
a.
Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (DRC) (hereinafter also referred
to as Single Judge) analysed whether she was competent to deal with the case at hand. In this
respect, it took note that the present matter was presented to FIFA on 4 March 2022 and
submitted for decision on 04 May 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.
2.
Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 Regulations on the Status and Transfer of Players (August 2021 edition), she 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 Guinean club.
3.
Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (August 2021 edition), and
considering that the present claim was lodged on 4 March 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
4.
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 she 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
5.
Its 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 she 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
6.
The Single Judge first noted that, on 26 July 2019, the player Agyei Enock Atta (the Claimant)
and Horoya Athletic Club (the Respondent) concluded an employment contract valid as from the
date of signature until 30 June 2024 with the conditions quoted in point I 2 and 3 above.
7.
Subsequently, the Single Judge observed that the player lodged a claim before FIFA against the
club for breach of contract without just cause, noting that, on 18 February 2022, he terminated
the contract with just cause after having put the club in default due to a debt exceeding two
months of salary.
8.
Conversely, the Single Judge took note of the Respondent’s position, which rejected the player’s
position. In particular, the Single Judge noted that the club provided a document from “United
Bank for Africa”, indicating the following payments:
- Salary transfer January 2022 made on 25 February 2022
- Salary transfer December 2021 made on 11 January 2022
- Salary payment November 2021 made on 09 March 2022 by cash deposit
- Salary transfer October 2021 made on 14 December 2021
- Salary transfer September 2021 made on 3 November 2021
- Salary transfer August 2021 made on 31 August 2021
9.
In view of the above, the Single Judge understood that the main issue at stake is to initially
determine the debt, if any, of the club towards the player as of the date of signature.
10. In this respect, the Single Judge first referred to the default notice sent on behalf of the player on
3 February 2022, which was drafted as follows:
« Notre client, M. Agyei Enock Atta nous a mandaté dans ce dossier car malgré les rappels qu’il
vous a adressé directement continue an’avoir pas encore été payé des sommes excédant deux mois
de salaire. Cette dette est d’un montant qu’entraine selon le règlement FIFA juste motif pourrésilier
son contrat prematurement (…) ».
Free Translation into English :
« Our client, Mr. Agyei Enock Atta, has mandated us in this case because despite the reminders he
has sent you directly continues not to have been paid amounts exceeding two months of salary.
This debt is of an amount which, according to FIFA regulations, is just cause for premature
termination of his contract (…) ».
11. In relation to said notice, the Single Judge concurred that the contents of the default notice are
rather imprecise as they do not refer to specific due dates.
12. Yet, after duly analyzing the documentation gathered during the investigation, both by the player
and the club, the Single Judge noted that the club incurred in a significant pattern of delays. For
REF FPSD-5345
example, the salary of November 2021 was paid in March 2022, or the salary of October 2021 was
paid on 14 December 2021.
13. In this regard, the Single Judge noted that, at the date of termination of the contract on 18
February 2022, at least the salaries of January 2022 (paid on 25 February 2022) and November
2021 (paid on 9 March 2022) were outstanding.
14. In view of the above, in application of the longstanding jurisprudence of the Football Tribunal for
comparable matters, the Single Judge concluded that the player terminated the contract with just
cause and he is therefore entitled to compensation.
ii.
Consequences
15. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
16. On this note, the Single Judge observed the submissions provided by the parties, and noted
that, as of the current date, it appears that the outstanding salaries were ultimately settled and
they are not claimed in the player’s replica. Hence, and regardless of the player’s termination
of the contract with just cause, the Single Judge established that no outstanding amounts are
due at the date of this decision.
17. The Single Judge then 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 Single Judge 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.
18. In application of the relevant provision, the Single Judge held that she first of all had to clarify
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.
19. 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.
20. As a consequence, the Single Judge determined that the amount of compensation payable by
the Claimant to the Respondent 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
REF FPSD-5345
for a non-exhaustive enumeration of criteria to be taken into consideration when calculating
the amount of compensation payable.
21. 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 until
its term. The Single Judge observed that the player would have earned the following:
- February 2022 to June 2022 (5*USD 5,000) = USD 25,000
- July 2022 to June 2023 (12*USD 5,000) = USD 60,000
- July 2023 to June 2024 (12*USD 5,000) = USD 60,000
Total: USD 145,000
22. Consequently, the Single Judge concluded that the amount of USD 145,000 serves as the basis
for the determination of the amount of compensation for breach of contract.
23. In continuation, the Single Judge verified 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.
24. In this respect, the Single Judge noted that the player remained unemployed since the unilateral
termination of the contract.
25. The Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case
the player did not sign any new contract following the termination of his previous contract, as
a general rule, the compensation shall be equal to the residual value of the contract that was
prematurely terminated.
26. In this respect, the Single Judge decided to award the player compensation for breach of
contract in the amount of USD 145,000, as the residual value of the contract.
27. Lastly, taking into consideration the player’s request as well as the constant practice of the DRC
in this regard, the Single Judge 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
28. Finally, taking into account the applicable Regulations, the Single Judge 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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29. 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.
30. Therefore, bearing in mind the above, the Single Judge 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 creditor, 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.
31. The club shall make full payment (including all applicable interest) to the bank account provided
by the player in the Bank Account Registration Form.
32. 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. 24 par. 8 (of
the Regulations.
d. Costs
33. 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, the Chamber decided that no procedural costs were to
be imposed on the parties.
34. Furthermore, 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.
35. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
REF FPSD-5345
III Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Agyei Enock Atta, is partially accepted.
2.
The Respondent, Horoya Athletic Club, has to pay to the Claimant, the amount of USD 145,000
as compensation for breach of contract without just cause plus 5% interest p.a. as from 4 March
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.
2.
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.
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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