Labour Disputes
Texto da decisão
REF FPSD-8388
Decision of the
Dispute Resolution Chamber
passed on 23 February 2023
regarding an employment-related dispute concerning
the player Keita Lanzeni Aziz
BY:
Frans de Weger (the Netherlands), Chairperson
Jorge Gutiérrez (Costa Rica), member
Stefano Sartori (Italy), member
CLAIMANT:
Keita Lanzeni Aziz, Côte d’Ivoire
Represented by Mondo Calcio Management
RESPONDENT:
SC Gjilani, Kosovo
Represented by Mr Dino Osmanovic
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I. Facts of the case
1.
On 1 September 2020, the Ivorian player, Keita Lanzeni Aziz (hereinafter: the Claimant),
and the Kosovar club, SC Gjilani (hereinafter: the Respondent) signed an employment
contract valid as from the date of signature until 30 June 2023 (hereinafter: the Contract).
2.
In accordance with the Contract, the Respondent undertook to pay to the Claimant
monthly remuneration as follows:
-
EUR 1,500 net between September 2020 and June 2021;
EUR 2,000 net between July 2021 and June 2022;
EUR 3,000 net between July 2022 and June 2023;
EUR 200 as “food costs” throughout the contractual term:
Signature bonus of EUR 2,500.
3.
In August 2021 [sic], the Claimant and the Respondent exchanged various messages, in
which the Claimant indicated that he wishes to leave the Respondent because he and
another teammate of his do not feel welcome on account of their ethnicity. The
Respondent accused them of being impolite and not attending training, and suggested
that the Claimant and his teammate “respect the contract, because the club will not let [them]
go anywhere.”
4.
On 17 August 2022, the Claimant sent a letter to the Respondent, outlining that three
monthly salaries have not been paid (September 2021, October 2021 and November
2021), as well as 9 months of food costs (between December 2021 and August 2022). The
Claimant requested immediate payment of the outstanding amounts and to be released
from his Contract.
5.
On 22 August 2022, the Respondent sent a letter to the Claimant, with FIFA in copy,
informing the latter that it was never told by him that he wished to terminate the Contract,
and that it does not recognize the validity of the letter sent on 17 August 2022, as this was
sent by the Claimant’s representative who is “not authorized by the Football Federation
of Kosovo” and who did not enclose a valid power of attorney. The Respondent also
alleged in said correspondence that it paid the Claimant his food allowance by covering
the tab at “Bambus Restaurant”, and enclosed screenshots of a WhatsApp conversation.
Lastly, the Respondent indicated that the contractual termination is invalid because it was
not sent to the Football Federation of Kosovo.
6.
On 25 August 2022, the Respondent informed the Claimant that he had been absent on
23, 24 and 25 August 2022 and that, as a result, the Claimant was in breach of his Contract
and could be sanctioned with a deduction of 100% of his salary, in accordance with art. 7
of the Contract.
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7.
Between 30 August 2022 and 7 October 2022, the Respondent issued three unilateral
“decisions”, fining the Respondent for missing training sessions.
II. Proceedings before FIFA
8.
On 28 November 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
9.
According to the Claimant, the Respondent failed to remit three monthly salaries,
corresponding to the months of September 2021 until November 2021, as well as nine
months of food allowance, thereby entitling him to terminate the Contract with just cause.
The Claimant also outlined that the salary of August 2022 had only been paid partially, in
the amount of EUR 1,995.
10. Beyond this, the Claimant alleged that he was being treated poorly by the Respondent,
amongst other things, not being allowed to bring his family to Kosovo.
11. The Claimant also remarked that, following his request to be released from the Contract
with immediate effect, the Respondent had not contested the alleged failure to comply
with the financial obligations of the Contract.
12. Thus, the Claimant requested EUR 80,500 as total compensation, in other words, the
entire value of the Contract.
b. Position of the Respondent
13. In its reply, the Respondent largely reiterated the arguments from its letter dated
22 August 2022, in particular that the Claimant had not terminated his Contract himself,
and that only his legal representative had done so, who was not registered with the
Football Federation of Kosovo and therefore whose correspondence was invalid.
14. The Respondent also outlined that the Claimant was absent from training, and
furthermore purported that the food allowance had been paid.
15. Lastly, the Respondent submitted three unilateral “decisions”, fining the Claimant for
being absent from training. Each of these “decisions” are dated after 30 August 2022, i.e.
after the Claimant terminated the Contract.
16. Thus, the Respondent rejected the claim in its entirety.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 and submitted for decision
on 23 February 2023. Taking into account the wording of art. 34 of the October 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.
2.
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 October 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 an
Ivorian player and a Kosovar club.
3.
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 (October 2022
edition), and considering that the present claim was lodged on 28 November 2022, the
October 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
b. Burden of proof
4.
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
5.
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
6.
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 the compliance with
certain financial obligations under the Contract by the Respondent, as well as the
lawfulness of the contractual termination by the Claimant.
7.
In this context, the Chamber acknowledged that it its task was to establish whether or not
the Respondent had defaulted on the disputed payments, as purported by the Claimant,
and subsequently whether the termination of the Contract had occurred with or without
just cause.
8.
Thus, the Chamber moved to the substance of the matter and first took note of the
Claimant’s allegation that the Respondent had failed to remit three monthly salaries,
between September 2021 and November 2021, as well as nine monthly food allowance
instalments under the Contract. The Chamber further noted that the Claimant alleged
only received partial payment for the salary of August 2022, in the amount of EUR 1,995.
9.
The Chamber equally recalled the Respondent’s argumentations, in particular that the
non-payment of the salary instalments had not been contested, but rather only the
payment of the food allowance, in the shape of providing text messages exchanged
between the parties in which the Respondent declared that it would cover the tab at
“Bambus Restaurant”. The Chamber further took note that the Respondent, whilst
providing some justification as to the non-payment of the Claimant’s salaries in the shape
of text messages in which the latter was warned for missing training during August 2021,
as well as the unilateral “decisions” taken following the departure from the Contract, no
further evidence was submitted specifically in relation to the outstanding instalments
pertaining to September 2021 – November 2021.
10. Lastly, the Chamber wished to stress that the Claimant, despite soliciting payment of the
value of the entire Contract in its request for relief, only concretely argued not having
been paid the three monthly salaries between September 2021 and November 2021, the
partial salary for August 2022, and the food allowance instalments.
11. Bearing in mind the foregoing, as well as the principle of burden of proof, the Chamber
was able to establish that the Respondent had failed to pay three monthly salaries, the
pro-rata amount of EUR 1,005 for the month of August 2022, during which the Claimant
had already rendered services for more than 15 days, as well as not complying with the
obligation under the Contract to provide a monthly food allowance. In this respect, the
Chamber took note of the fact that the Respondent had not contested the non-payment
of the salary instalments, as well as not providing any proof of payment of any restaurant
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tab et simile, to meet the burden of proving that it had, contrary to the Claimant’s
allegations, remitted those payments.
12. Additionally, the Chamber remarked that the “decisions” taken by the Respondent on 23,
24 and 25 August 2022, took place following the Claimant’s departure from the Contract
and were, in any event, conducted entirely unilaterally and accompanied by no proof of
adequate due process of a potential internal hearing, thus having no bearing on the case
at hand.
13. Therefore, in any event, the Chamber concluded that the Claimant is entitled to receive
outstanding remuneration of EUR 8,805, corresponding to three monthly salary
instalments of EUR 2,000 each (= EUR 6,000), nine food allowance instalments of EUR 200
each (= EUR 1,800) and the remaining salary for August 2022 (EUR 1,005).
14. With regards to the contractual termination, the Chamber deemed it appropriate to
remind the parties that only a breach or misconduct which is of a certain severity justifies
the termination of a contract. In other words, only when there are objective criteria which
do not reasonably permit to expect the continuation of the employment relationship
between the parties, a contract may be terminated prematurely. Hence, if there are more
lenient measures which can be taken in order to ensure the fulfilment of the contractual
duties by the counterparty, such measures must be taken before terminating an
employment contract. A premature termination of an employment contract can only ever
be an ultima ratio measure.
15. In light of the above, the Chamber considered, despite not having issued a formal default
notice, the Respondent’s failure not only to remit three unpaid monthly salaries over a
period of delay of nine months, but also failing to provide the Claimant food allowance
for a period of nine months in total, constituted a breach of contract which was consistent
and substantial enough to no longer reasonably permit the continuation of the
contractual relationship by 17 August 2022, when the Claimant expressly requested to be
released from his Contract.
16. The Chamber, therefore, concluded that the contractual termination by the Claimant
constituted an ultima ratio measure, and thus was held to have occurred with just cause.
ii. Consequences
17. 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.
18. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Claimant, are equivalent to EUR 8,805,
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corresponding to three monthly salary instalments of EUR 2,000 each (= EUR 6,000), the
pro-rata remaining amount of the salary for August 2022 (EUR 1,005), and nine food
allowance instalments of EUR 200 each (= EUR 1,800).
19. 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. EUR 8,805.
20. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent 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 Claimant 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.
21. In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the pertinent 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 Contract at the basis of the matter at stake.
22. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant 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.
23. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber
proceeded with the calculation of the monies payable to the Claimant 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 30,000 (i.e. the residual value of the
Contract, or ten monthly salaries between September 2022 until June 2023) serves as the
basis for the determination of the amount of compensation for breach of contract.
24. In continuation, the Chamber verified as to whether the Claimant 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
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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
Claimant’s general obligation to mitigate his damages.
25. Indeed, the Claimant confirmed that he had remained unemployed following such
termination. Therefore, the Chamber concluded that no mitigation or additional
compensation shall apply in the present case, in accordance with art. 17 par. 1 lit. i) of the
Regulations.
26. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must pay the
amount of EUR 30,000 to the Claimant (i.e. residual value of the Contract), which was to
be considered a reasonable and justified amount of compensation for breach of contract
in the present matter.
27. Lastly, given that the Claimant requested no interest on any of the claimed amounts, the
Chamber granted no interest to the former, in accordance with the principle of ne ultra
petita.
iii. Compliance with monetary decisions
28. 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.
29. 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.
30. 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.
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31. 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.
32. 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
33. 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.
34. 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.
35. 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, Keita Lanzeni Aziz, is partially accepted.
2.
The Respondent, SC Gjilani, has to pay to the Claimant the following amount(s):
- EUR 8,805 as outstanding remuneration;
- EUR 30,000 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.
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 article 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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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