Labour Disputes
Texto da decisão
REF FPSD-4312
Decision of the
Dispute Resolution Chamber
passed on 31 March 2022
regarding an employment-related dispute concerning the player Moussa
Ballo
BY:
Philippe Diallo (France)
CLAIMANT:
Moussa Ballo, Mali
Represented by Loïc Alves
RESPONDENT:
Al Nahdha Club, Oman
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REF FPSD-4312
I.
Facts of the case
1.
On an unknown date, the Malian player, Moussa Ballo (hereinafter: the Claimant) and the
Omani club, Al Nahdha (hereinafter: the Respondent) concluded an employment contract
(hereinafter: the contract), valid from 19 September 2021 until 31 May 2022, entitling the
Claimant to a monthly salary of USD 4,000 per month.
2.
On 28 October 2021, the parties agreed to mutually terminate the contract and concluded a
termination agreement (hereinafter: “termination agreement”)
3.
In accordance with the termination agreement, the Respondent agreed to pay to the
Claimant, the following by 1 November 2021:
Amount in $
1,366.839
2,709.677
4,000.00
Amount in R.O
527.600
Statement
Name
The Remainder of
September salary
1045.935
Salary for the month
of October until Mousa Ballo
2021
1544
One month salary is a
penalty
clause
according to the
contract
The total: R.O (3177.535 R.O)
The total: R.O (8076.516 $)
4.
According to the Claimant, the Respondent failed to make the said payment as agreed to in
the termination agreement, therefore on 4 November 2021 the Claimant sent a default notice
to the Respondent, requesting payment of the amount of USD 8,076.51, granting it a 10
days’ deadline to comply.
5.
The Claimant indicated that the Respondent failed to reply to his default notice but made a
partial payment to the Claimant in the amount of (Omani Rial) OMR 577.450, approximately
USD 1,500.
II. Proceedings before FIFA
6.
On 17 November 2021, 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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REF FPSD-4312
a.
Position of the Claimant
7.
According to the Claimant, “despite the clear terms of the termination agreement and my
default notice, the club failed to pay me the full amount agreed upon, as the amount of USD
6576,5 has still not been paid to me, accordingly the actions of the club constitute a clear
and continuous violation of the principle of pacta sunt servanda.”
8.
The requests for relief of the Claimant, were that the Respondent pay him the outstanding
amount of USD 6,576.50 as overdue payables, plus 5% interest p.a. as from the 1 November
2021 until the date of effective payment.
b.
Position of the Respondent
9.
In reply to the claim, the Respondent stipulated the following:
“The club has a friendly agreement with the player (not written) that his financial dues will
be paid in installments in return for the club allowing the player to play inside the Sultanate
while holding the residence card in the name of the club.
The club adhered to this friendly agreement and paid the amount due to the player in
installments through the club's financial officer / Ahmed Hassanein as follows:
- The first payment (1500) dollars for the player (attached) on 03/11/2021
- The second payment (1500) dollars for the player (attached) on 15/12/2021
- The third payment (5076.516) dollars for the player (attached) on 03/01/2022”
10. According to the Respondent, on account of the above it has fulfilled its obligations to the
Claimant.
c.
Additional comments Claimant
11. The Claimant was granted an opportunity to provide his comments on the alleged payment
documents submitted by the Respondent.
12. In this context, the Claimant mentioned that the Respondent “attempts to rely on three
documents which content could indeed be misleading, i.e. three customer copy receipts dated
3 November 2021 (“Customer Receipt 1”), 15 December 2021 (“Customer Receipt 2”) and 3
January 2022 (“Customer Receipt 3”).”
13. The Claimant indicated that in reference to Customer Receipt 1, the amount of OMR 577.450
was indeed picked up by the Claimant and is not in dispute in casu. It is noted that this
payment was made before the Claimant filed his claim.
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14. Moreover, the Claimant mentioned that in relation to Customer Receipts 2 and 3 (OMR
577.450 and OMR 1,956.950), the amounts have not been paid by the Respondent. In this
regard, the Claimant indicated that the Claimant repeatedly informed the Respondent “in
their WhatsApp conversations that payment must be made via his bank account, he even
provided the bank account details several times.”
15. Furthermore, the Claimant’s representative requested the Respondent “to cease pressuring
the Player to accept any cash payment, and that any money transfer shall be made to the
Player’s bank account which details were provided to the Club.”
16. Finally, according to the Claimant “the transactions status for Customer Receipts 2 and 3 on
the Transfast website clearly indicate that the money was not picked up and is still available
with the partner company handling such transactions, which proves with certainty that the
Player has not received the remaining amount of USD 6576,5 - it is also underlined that the
Player is currently out of the country. “
17. In conclusion the Claimant requested that the Respondent’s allegations be rejected and that
it should be ordered to pay to the Claimant USD 6,576.50 as overdue payables plus 5%
interest p.a. as from 1 November 2021 until the date of effective payment.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Single Judge)
analysed whether it was competent to deal with the case at hand. In this respect, he took
note that the present matter was presented to FIFA on 17 November 2021 and submitted for
decision on 31 March 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 edition), the Single Judge is competent to
deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Malian player and an Omani club.
20. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he 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 November 2021, the August 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
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REF FPSD-4312
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 he 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
22. His 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 he will refer only to the facts, arguments and documentary evidence, which
he 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 took note of the fact that the parties strongly dispute the total amount that was
outstanding and due to the Claimant as per the termination agreement concluded between
the parties.
24. In this context, the Single Judge acknowledged that it its task was to whether the amounts
claimed by the Claimant had indeed already fallen due and were to be paid by the
Respondent.
25. In this respect, the Single Judge noted that according to the termination agreement signed
between the Claimant and the Respondent, the latter undertook to pay the amount of USD
8,076.51 to Claimant by 1 November 2021, however, it is uncontested that the Respondent
failed to do so, as it merely made a partial payment to the Claimant in the amount of (Omani
Rial) OMR 577.450, approximately USD 1,500, after the Claimant sent his default notice on
4 November 2021.
26. The Single Judge remarked that in its submissions, the Respondent argued that it that it duly
complied with its financial obligations towards the Claimant and accordingly submitted
payment documents, which according to the Respondent illustrated further payments it had
made to the Claimant. In this regard, the Single Judge noted that the Claimant disagreed that
he collected or received any further payment from the Respondent and, on his account,
submitted documentary evidence as proof that the funds was not collected by him.
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REF FPSD-4312
27. In this respect, the Single Judge pointed out that the said documentation as submitted by the
Respondent is not conclusive documentary evidence, on the basis of which it could be
established that it made the relevant payments to the Claimant and/or that the said funds as
indicated in the respective customer receipts dated 15 December 2021 and 3 January 2022
were indeed collected by or paid out to the Claimant. In this context the Single Judge
emphasised that the Claimant submitted conclusive documentary evidence which illustrated
the transactions status of the aforesaid customer receipts which inter alia indicated that the
money was not collected by the Claimant and is still available with the institution managing
the said transactions.
28. As a result of the foregoing, the members of the Single Judge came to the conclusion that
arguments of the Respondent cannot be upheld.
29. Following the aforementioned line of reasoning, the Single Judge concluded that the
Respondent was in arrears of its financial obligations as per the termination agreement and
is thus to be held liable for the consequences thereof.
ii. Consequences
30. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of the termination agreement committed by the
Respondent.
31. 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 outstanding
amount of USD 6,576.50 as per the termination agreement.
32. What is more, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the Single Judge decided to award 5% interest p.a. on the above
amounts from the respective due dates until the date of effective payment.
iii. Compliance with monetary decisions
33. 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.
34. 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
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REF FPSD-4312
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
35. 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.
36. 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.
37. 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
38. 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 Judge decided that no procedural costs were
to be imposed on the parties.
39. 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.
40. Lastly, the Single Judge 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, Moussa Ballo, is accepted.
2.
The Respondent, Al Nahdha Club, has to pay to the Claimant, the following amount:
-
▪
USD 6,576.50 as outstanding remuneration, plus 5% interest p.a. as from 2 November
2021 until the date of effective payment
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
4.
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.
5. 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.
6. 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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