Labour Disputes
Texto da decisão
REF FPSD-5506
Decision of the
Dispute Resolution Chamber
passed on 4 May 2022
regarding an employment-related dispute concerning the player Abdoul Ba
BY:
Stella Maris Juncos (Argentina), Single Judge of the DRC
CLAIMANT:
Abdoul Ba, Mauritania
Represented by Ms Laura Grange (UNFP)
RESPONDENT:
Ahly Tripoli, Libya
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I.
Facts of the case
1.
On 14 October 2021, the Mauritanian player, Mr Abdoul Ba (hereinafter: the player or the
Claimant) and the Libyan club, Ahly Tripoli (hereinafter: the club or the Respondent)
concluded an employment contract (hereinafter: the contract), valid as from the date of its
signature until 13 October 2022.
2.
In accordance with clause 3 of the contract, the club undertook to pay to the player, inter
alia, the following remuneration: USD 87,500 as sign on fee and USD 7,292 as monthly salary.
3.
According to clause 5 of the contract, the club undertook to provide the player with “suitable
accommodation and a car for training and matches throughout the term of the contract”.
4.
In accordance with clause 6 of the contract, the club undertook to provide the player with “2
travel ticket for the player and his family members for the duration of this contract”.
5.
By means of his letter dated 24 January 2022, the player put the club in default of payment
concerning his salaries of October, November and December 2021, thereby granting the club
a 10 days’ deadline to remedy the default.
6.
By means of his letter dated 27 January 2022, the player urged the club to reinstate him with
the first team, to provide him with his car (contractually agreed) and to pay his outstanding
remuneration.
7.
On 4 February 2022, the player put the club in default of payment concerning the salaries of
October, November, December (all 2021) and January 2022, thereby granting the club a 5
days’ deadline to remedy the default.
8.
On 7 February 2022, the club provided the player with a one-way plane ticket Tripoli-France
and requested him to leave the country.
9.
By means of his notice dated 10 February 2022, the player unilaterally terminated his contract.
10. On 15 February 2022, the player concluded a new contract with the Kosovan club, FC BESA
PEJË LLC, valid as from the date of its signature until 30 June 2022 against payment of a
monthly salary of EUR 600, i.e. a total fixed remuneration of EUR 3,000, i.e. USD 3,274, for
the whole term of the contract, as acknowledged by the Claimant.
II. Proceedings before FIFA
11. On 17 March 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
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a. Position of the Claimant
12. The player lodged a claim against the club before FIFA, requesting to be awarded outstanding
remuneration and compensation for breach of contract in the amount of USD 127,965 and
EUR 24,508, plus 5% interest p.a. as from the respective due dates concerning the amounts
requested as outstanding remuneration and as from the date of termination of the contract
concerning the amounts requested as compensation for breach of contract, as well as 6 return
tickets between Tripoli-Paris “in an amount to be determined by FIFA Travel, plus 5% interest
p.a. from the date of termination of the Contract”, amounts broken down by the Claimant
as follows:
Outstanding remuneration: USD 28,437
-
USD 4,131.57 for the salary of October 2021 (pro-rata);
USD 7,291.67 for the salary of November 2021;
USD 7,291.67 for the salary for December 2021;
USD 7,291.67 for the salary for January 2022;
USD 2,430.56 for the salary for February 2022 (pro-rata).
Compensation for breach of contract: USD 99,528 and EUR 24,508
- USD 55,789 corresponding to: USD 59,063, i.e. the residual value of the contract, as from
11 February until 13 October 2022, minus the amount of USD 3,274 that the player mitigated
by signing his new contract;
- USD 43,749 as additional compensation ex. art. 17.1 lit ii.) of the Regulations, i.e. 6 salaries
of USD 7,291.67 each;
- EUR 19,508, broken down as follow: EUR 11,488 as residual value of the entitlement in
kind of the player to be provided a car for the remaining value of the contract, ex. clause 5
of the contract; and EUR 8,020 as residual value of the entitlement in kind of the player to
be provided with accommodation ex. clause 5 of the contract;
- EUR 5,000 as legal costs.
13. In his claim, the Claimant explains that, despite him having complied with his contractual
obligations, the club has failed to comply with its financial obligations towards him, only
having proceeded with the payment of the sign-on fee, failing to remit all his salaries, despite
the player having put the club in default of payment.
14. In addition, the Claimant wished to stress that not only failed the Respondent to pay his
salaries, but also -upon receipt of the first default notice of the player- the Respondent
breached the contract by not allowing the player to join the first team and by not allowing
the player to use the car to which he was contractually entitled as per clause 5 of the contract.
15. The player further explained that, upon the signature of the contract, the player received a
residence permit, which was issued on 4 November 2021 and was valid until 3 February 2022.
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16. In this respect, the player explained that the club had to take steps to renew the player's
residence permit until the end of his contract, i.e. 13 October 2022, but the club failed to do
so, showing its lack of interest for the player’s services.
b. Position of the Respondent
17. Despite having been invited to do so, the Respondent failed to reply to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter referred to as the
Single Judge analysed whether he was competent to deal with the case at hand. In this
respect, she took note that the present matter was presented to FIFA on 17 March 2022 and
submitted for decision on 4 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.
19. Subsequently, the Single Judge 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 (March 2022), the Single Judge is competent to deal with
the matter at stake, which concerns an employment-related dispute with an international
dimension between a Mauritanian player and a Libyan club.
20. 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 (March 2022 edition) and
considering that the present claim was lodged on 17 March 2022, the March 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
21. 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 it may consider evidence
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not filed by the parties, including without limitation the evidence generated by or within the
Transfer Matching System (TMS).
c. Merits of the dispute
22. 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
she considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
23. The foregoing having been established, the Single Judge moved to the substance of the
matter, and recalled that Claimant requests to be awarded USD 127,965 and EUR 24,508
(and flight tickets in the amount to be determined by FIFA Travel), plus 5% interest p.a.,
corresponding to: outstanding salaries, compensation for breach of contract (already
deducting the amount mitigated by virtue of the income received as per the player’s new
contract), additional compensation, the residual value of the entitlement of the player to be
provided with accommodation and a car during the remainder of the contract and legal fees.
24. The Single Judge also noted that, on its part, the Respondent failed to reply to the claim,
missing its procedural opportunity to comment on and / or reboot the allegations of the
Claimant. Thus, the allegations of the Claimant -if supported with the necessary evidencewill be considered as uncontested facts, in accordance with art. 21 para. 1 of the Procedural
Rules.
25. The above being said, the Single Judge noted that the petita of the Claimant concerning the
outstanding salaries requested find a contractual basis in clause 3 of the contract. Thus, since
the Respondent failed to reply to the claim and contest the allegations of the Claimant
regarding its lack of payment of his salaries (as from 14 October 2021 until 10 February 2022),
the amounts requested by the Claimant for the said considerations shall be awarded in
accordance with the legal principle, pacta sunt servanda.
26. The above being undisputed, the Single Judge further observed that the player terminated
the contract with just cause on 10 February 2022 in accordance with art. 14 of the
Regulations, insofar as, on the said date, more than 3 monthly salaries were outstanding and
the player had put the club in the default of payment on several occasions, granting deadlines
of 10 and 5 days to the club to remedy the default without the club doing so. In addition to
the overdue payables, the Single Judge highlighted that it remained undisputed that the club:
did not allow the player to join the first team upon receipt of the first default notice sent by
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the player, prevented the player from using the car despite him being entitled to use it as per
clause 5 of the contract and failed to renew the player’s residence permit.
27. In view of all the above-mentioned events, the Single Judge decided that the player
terminated the contract with just cause on 10 February 2022 ex. art. 14 of the Regulations.
ii. Consequences
28. 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.
29. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, amounts to USD 28,437,
corresponding to the salaries due as from 14 October 2021 until 10 February 2022.
30. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge 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
28,437.
31. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard, the Single Judge decided to award the
Claimant interest at the rate of 5% p.a. on the outstanding amounts as follows: on the
amount of USD 4,131.57 as from 1 November 2021 until the date of effective payment; on
the amount of USD 7,291.67 as from 1 December 2021 until the date of effective payment;
on the amount of USD 7,291.67 as from 1 January 2022 until the date of effective payment;
on the amount of USD 7,291.67 as from 1 February 2022 until the date of effective payment;
on the amount of USD 2,430.56 as from 11 February 2022 until the date of effective
payment.
32. Having stated the above, the Single Judge 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.
33. In application of the relevant provision, the Single Judge held that she, 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
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contractual parties in the event of breach of contract. 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.
34. As a consequence, the Single Judge 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 Single Judge recalled that said provision provides for a
non-exhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
35. 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 employment
contract from the date of its unilateral termination until its end date. Consequently, the Single
Judge concluded that the amount of USD 59,063 serves as the basis for the determination of
the amount of compensation for breach of contract.
36. In continuation, the Single Judge 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. Indeed, the player found employment with the Kosovan club, FC BESA
PEJË LLC. In accordance with the pertinent employment contract, the player was entitled to
approximately EUR 600 per month. Therefore, the Siconcluded that the player mitigated his
damages in the total amount of EUR 3,000 (approximately, USD 3,274), that is, 5 times EUR
600.
37. Subsequently, the Single Judge 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 Single Judge 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.
38. In this respect, the Single Judge decided to award the amount of additional compensation of
USD 21,875, i.e. three times the monthly remuneration of the player.
39. Consequently, considering that the mitigated compensation, if summed up with the
additional compensation, exceeds the residual value of the contract, which shall operate as
limit ex. art. 17 para. 1 lit. ii) of the Regulations, the Single Judge decided that the club must
pay the amount of USD 59,063 to the player (i.e. the 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.
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40. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the Single Judge decided to award the player interest on the amount
of USD 59,063 at the rate of 5% p.a. as of 17 March 2022 until the date of effective payment.
41. The above being said, the Single Judge decided that any further claims of the Claimant are
rejected. In particular, the Single Judge referred to the following aspects: 1.) the
compensation for the residual entitlement of the player to be provided with a car and
accommodation needs to be rejected in view of the fact that the contract does not provide a
specific amount for the said entitlement, which led the Single Judge to the assumption that
those were payments in kind and, in addition, insofar as the Claimant is no longer rendering
his services for the club, there is no legal basis for the Claimant’s entitlement to be provided
with accommodation or a car after the date of termination of the contract, nor any financial
conversion of the said entitlements; 2.) the Claimant acknowledged having been provided
with a flight ticket to return to his home country and, insofar as the player failed to provide
evidence of having incurred in flight tickets’ expenses in an amount equal to the 6 return
tickets Tripoli-Paris requested, the said request needs to be rejected ex. art. 13 para. 5 of the
Procedural Rules; 3.) legal costs requested by the Claimant are rejected ex. art. 25 para. 8 of
the Procedural Rules.
iii. Compliance with monetary decisions
42. 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. 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.
43. Therefore, bearing in mind the above, the Single Judge 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.
44. 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. 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.
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d. Costs
45. 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 Single decided that no procedural costs were to be
imposed on the parties.
46. Likewise and for the sake of completeness, 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, as already mentioned.
47. Lastly, the Single Judge concluded her deliberations by rejecting any other requests for relief
made by any of the parties.
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Abdoul Ba, is partially accepted.
2.
The Respondent, Ahly Tripoli, has to pay to the Claimant, the following amount(s):
- USD 28,437 as outstanding remuneration plus 5% interest p.a., calculated as follows:
-
On the amount of USD 4,131.57 as from 1 November 2021 until the date of effective
payment;
On the amount of USD 7,291.67 as from 1 December 2021 until the date of effective
payment;
On the amount of USD 7,291.67 as from 1 January 2022 until the date of effective
payment;
On the amount of USD 7,291.67 as from 1 February 2022 until the date of effective
payment;
On the amount of USD 2,430.56 as from 11 February 2022 until the date of effective
payment.
- USD 59,063 as compensation for breach of contract without just cause plus 5% interest p.a.
as from 17 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.
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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 the ban shall
be of 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
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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