Labour Disputes
Texto da decisão
Decis ion of the
Dispute Resolution Chamber (DRC) judge
passed on 19 February 2020,
by Mr Daan de Jong (Netherlands), DRC judge,
on the claim presented by the player,
Alberico Barbos a da S ilv a, Brazil
represented by Mr Daniel Cravo
as “Claimant”
against the club
Akw a United Football Club, Nigeria
represented by Mr Peter Ime Akpan
as “Respondent”
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 13 November 2018, the Brazilian player, Mr Alberico Barbosa da Silva (hereinafter: the
player or the Claimant) concluded an employment contract (hereinafter: the first contract) with
the Nigerian club, Akwa United Football Club (hereinafter: the club or the Respondent)
(hereinafter jointly referred to as: the parties). The contract was valid for the season 2018/2019.
2.
According to art. 1 of the first contract, the player was entitled to a monthly salary of Nigerian
Naira (NGN) 850,000, as well as bonuses as follows:
-
NGN 30,000 per home win;
NGN 30,000 per away draw;
NGN 50,000 per away win.
3.
On 19 November 2018, the parties concluded a new employment contract (hereinafter: the
second contract), valid as from the date of signature until 18 November 2020.
4.
According to art. 2 of the second contract, the Respondent undertook to pay to the Claimant
a monthly salary of NGN 850,000, due at the end of each month. In addition, art. 2 stipulates
that “(t)he player shall be entitled to all the bonuses that the club may decide to award
whether for any particular match or for any silverware or any other achievement in which he
played a role during the duration of this contract” .
5.
By means of a letter dated 19 June 2019 addressed to the Respondent, the Claimant indicated
that “(a)s a consequence of the Coach and the Assistant Coach suspension, the Club has
ordered the Player to train separately from the other players of the first team, w ithout any
grounds , which per se, is causing severe damages for his career.” The Claimant also contested
the Respondent’s decision not to include the player in the team for the next matches.
Moreover, the Claimant indicated that the Respondent was still in possession of his passport,
which he considered to be “another grave conduct”. In light of the foregoing, the Claimant
requested that the Respondent immediately returns his passport and reintegrates him to the
first team’s training sessions and matches. In this regard, the Claimant granted the Respondent
48 hours to reply.
6.
On 20 June 2019, the Respondent sent a letter to the Claimant, with the subject “(e)nd of
Nigeria League Season and Expiration of Contract”. In particular, the Respondent indicated
that the season ended on 12 June 2019, thanked all the people involved in the successful season
of the club and stated that the club “will get in touch as to the resumption date for the new
season which starts early August 2019.”
7.
On 16 August 2019, the Claimant informed the Respondent that he is “at the Club’s disposal
to resume his activities and to represent the Club in the Nigerian season of 2019/2020.” In this
regard, the Claimant requested airfare tickets to return to Nigeria in due course. Moreover,
the Claimant also informed the Respondent of outstanding remuneration still due to him, as
follows:
Player Alberico Barbosa da Silva, Brazil / Akwa United Football Club, Nigeria
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NGN 170,000 as performance bonus;
NGN 850,000 as the monthly salary of July 2019;
NGN 2,500,000 as the sign-on fee;
USD 1,000 “in connection with the fine paid to the Nigerian Government to allow the
Player’s return to Brazil, due to the retention of the Player passport by the Club, which
turned impossible for him to regulate his working visa”.
8.
By means of another letter dated 19 August 2019, the Claimant referred to a WhatsApp
message from the Respondent, asking him to return to Nigeria and to start training on
19 August 2019. In this context, the Claimant granted the Respondent 24 hours to indicate if
it was still interested in the services of the player, and if so, to provide him with airfare tickets
to return to Nigeria. In these circumstances, the Claimant indicated that he would consider the
contract terminated with just cause if the Respondent did not reply within 24 hours. Finally,
the Claimant reiterated his request for the payment of the amounts detailed in his
correspondence dated 16 August 2019.
9.
On 24 August 2019, the Claimant sent a letter to the Respondent, reiterating the content of
his previous correspondence and granted the Respondent a deadline until 31 August 2019 to
remedy the situation.
10. With a letter dated 3 September 2019, the Claimant put the Respondent in default to pay
within 15 days his monthly salaries of July and August 2019, as well as the other outstanding
amounts as detailed in his correspondence dated 16 August 2019. The Claimant further
indicated that failure to pay said amounts would result in the termination of the contract with
just cause.
11. On 23 September 2019, the Claimant informed the Respondent of the termination of the
contract (hereinafter: the termination notice).
12. On 15 October 2019, the Claimant lodged a claim against the Respondent in front of FIFA.
13. In his claim, the Claimant held that he was forced to train alone as from 10 June 2019 and that
despite his complaints, this situation persisted. The Claimant also emphasized that he always
complied with his contractual obligations.
14. In addition, the Claimant explained that he left Nigeria on 27 June 2019, with the prior
approval of the Respondent. However, he was forced to pay a fine in the amount of
USD 1,000 at the Nigerian airport as he did not have a residence permit.
15. Moreover, the Claimant considered to have made efforts to contact the club in order to find
out when he had to resume work in Nigeria and to obtain airfare tickets. Despite the
foregoing, the Claimant explained that no airfare tickets were ever provided by the
Respondent.
16. In this context, the Claimant mentioned having put the Respondent in default numerous times,
granting the latter various deadlines. However, the Respondent never answered.
Player Alberico Barbosa da Silva, Brazil / Akwa United Football Club, Nigeria
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17. Therefore, in light of the above, the Claimant considered to have terminated the contract with
just cause in accordance with Art. 14bis of the Regulations on the Status and Transfer of
Players.
18. Consequently, the Claimant requested the payment of the following amounts, plus interest of
5% p.a. as from the due dates:
-
NGN 1,700,000 corresponding to his salaries of July and August 2019;
NGN 2,500,000 corresponding to the sign-on fee;
NGN 170,000 corresponding to performance bonuses;
USD 1,000 corresponding to the fine paid by the Claimant to the “Nigerian Government
due to the undue retention of his passport by the Respondent”;
Compensation for breach of contract taking into account the Claimant’s monthly
remuneration of NGN 850,000;
19. In addition, the Claimant requested the imposition of sporting sanctions on the Respondent
and asked that the Respondent bears all the costs of the proceedings.
20. In spite of being invited to do so, the Respondent failed to submit a reply to the claim.
21. On 4 February 2020, the Claimant informed FIFA that he had not concluded any new
employment contract following the termination notice dated 23 September 2019.
II. Cons iderations of the Dis pute Res olution Cham ber judge
1. First, the Dispute Resolution Chamber judge (hereinafter also referred to as: the judge) analysed
whether he was competent to deal with the matter at stake. In this respect, he took note that
the present matter was submitted to FIFA on 15 October 2019. Consequently, the 2018 edition
of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf.
art. 21 of the Procedural Rules).
2. Subsequently, the judge referred to art. 3 par. 1 of the Procedural Rules and confirmed that in
accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of the Regulations
on the Status and Transfer of Players (edition 2020), the Dispute Resolution Chamber judge was
competent to decide on the present matter, which concerns an employment-related dispute
between a Brazilian player and a Nigerian club.
3.
In continuation, the 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 (edition 2020), and considering that the
present claim was lodged on 15 October 2019, the October 2019 edition of said regulations
(hereinafter: Regulations) were applicable to the matter at hand as to the substance.
4.
The competence of the Dispute Resolution Chamber judge and the applicable regulations
having been established, the judge entered into the substance of the matter. In this respect,
he started by acknowledging all the above-mentioned facts, the arguments and the
documentation submitted by the Claimant. However, the judge emphasised that in the
Player Alberico Barbosa da Silva, Brazil / Akwa United Football Club, Nigeria
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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.
5.
In this respect, the judge observed that the Respondent failed to submit a reply to the claim.
With this in mind, the judge recalled the content of art. 9 par. 3 second sentence of the
Procedural Rules, according to which a decision shall be taken upon the basis of the documents
already on file if no statement or reply is received before the time limit expires.
6.
Having established the above, the judge took note that the parties first concluded an
employment contract on 13 November 2018, following which they signed a second
employment contract on 19 November 2018.
7.
In this context, the judge determined that the first issue to be resolved was the applicability of
the first contract and the second contract to the present dispute.
8.
At this point, the judge observed that both contracts were signed by the parties, 5 days apart.
The judge further analysed the content of the first contract and the second contract and
concluded that both contracts covered the same subject matter. Therefore, the judge was of
the opinion that it must have been the parties’ intention to only consider the second contract
as the valid and binding document governing their contractual relationship.
9.
With those considerations in mind, the judge considered that the second contract superseded
the first contract. As such, the judge stated that only the second contract signed on
19 November 2018 will be taken into account for the assessment of the matter at hand.
10. The Dispute Resolution Chamber judge then observed the argumentation of the Claimant and
noted, in particular, that the Claimant argued to have terminated the contract with just cause
and in these circumstances, requested the payment of outstanding remuneration and
compensation for breach of contract, as well as other amounts such as a sign-on fee,
performance bonuses and the reimbursement of a fine.
11. In this context, the judge deemed that the second underlying issue in the present dispute was
to determine whether the contract had been unilaterally terminated with or without just cause
by the Claimant on 23 September 2019 and the consequences thereof.
12. The judge first emphasised that prior to the termination notice, the Claimant had sent four
letters to the Respondent, indicating the outstanding amounts due to him and granting the
Respondent various deadlines to comply with its financial obligations. In particular, the judge
observed that in his letter dated 3 September 2019, the Claimant granted the Respondent a
deadline of 15 days to pay 2 monthly salaries, as well as other amounts.
13. The judge further noted that by means of the letters sent to the Respondent, the Claimant also
requested sporting measures, such as his reintegration into the first team and airfare tickets to
return to Nigeria.
14. At this stage, the judge deemed it necessary to recall the content of Art. 14bis par. 1 of the
Regulations, which reads as follows: “In the case of a club unlawfully failing to pay a player at
least two monthly salaries due on their due dates, the player will be deemed to have a just
cause to terminate his contract, provided that he has put the debtor club in default in writing
Player Alberico Barbosa da Silva, Brazil / Akwa United Football Club, Nigeria
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and has granted a deadline of at least 15 days for the debtor club to fully comply with its
financial obligation(s).”
15. With this established, the judge concluded that on the date of the termination notice, i.e.
23 September 2019, two monthly salaries were outstanding in favour of the Claimant, as well
as other amounts claimed by the latter.
16. Therefore, in view of all the aforementioned, the judge was of the firm opinion that the
Claimant terminated the contract with just cause on 23 September 2019. As such, the
Respondent should be held liable for the early termination of the contract.
17. Having established that the Respondent was to be held liable for the early termination of the
employment contract, the judge focused his attention on the consequence of such termination.
Taking into consideration art. 17 par. 1 of the Regulations, the judge decided that the Claimant
is entitled to receive from the Respondent an amount of money as compensation for breach of
the contract in addition to any outstanding payments on the basis of the relevant employment
contract.
18. First of all, the judge reverted to the Claimant’s claim, which included the outstanding amount
of NGN 1,700,000 relating to the monthly salaries of July and August 2019.
19. Consequently, taking into account that the contract was terminated on 23 September 2019, and
in accordance with the general legal principle of pacta sunt servanda, the judge decided that
the Respondent is liable to pay the amount of NGN 1,700,000 corresponding to the monthly
salaries of July and August 2019.
20. In addition, taking into account the Claimant’s request, the judge decided that the Respondent
must pay to the Claimant interest of 5% p.a. on the amount of NGN 1,700,000 as from the due
dates until the effective date of payment.
21. In continuation, the judge focused his attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the 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 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.
22. In application of the relevant provision, the judge held that it first of all had to clarify as to
whether the pertinent employment contract contains 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 judge established that no such
compensation clause was included in the contract at the basis of the matter at stake.
23. As a consequence, the judge 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 judge recalled that said provision provides for a nonPlayer Alberico Barbosa da Silva, Brazil / Akwa United Football Club, Nigeria
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exhaustive enumeration of criteria to be taken into consideration when calculating the amount
of compensation payable.
24. Bearing in mind the foregoing as well as the claim of the Claimant, the judge proceeded with
the calculation of the monies payable to the Claimant under the terms of the contract until
18 November 2020. In view of the foregoing, the judge observed that the residual value of the
contract is NGN 12,750,000, corresponding to fifteen monthly salaries of NGN 850,000, which
shall serve as the basis for the final determination of the amount of compensation for breach
of contract.
25. In continuation, the judge 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 able to reduce his loss of income. According to art. 17 par. 1 point ii) of the
Regulations, such remuneration under a new employment contract shall be deducted from the
residual value of the contract that was terminated early, in the calculation of the amount of
compensation for breach of contract (“the mitigated compensation”).
26. In this context, the judge noted that the Claimant remained unemployed during the relevant
period, making it impossible for him to reduce his loss of income.
27. Consequently and on account of all of the above-mentioned consideration and the specificities
of the case at hand, the judge decided that the Respondent must pay the amount of
NGN 12,750,000 to the Claimant which was considered reasonable and proportionate as
compensation for breach of contract in the case at hand.
28. In addition, taking into account the Claimant’s request as well as the constant practice of the
Dispute Resolution Chamber judge in this regard, the judge decided that the Respondent must
pay to the Claimant interest of 5% p.a. on the amount of compensation, i.e. NGN 12,750,000 as
of 23 September 2019 until the date of effective payment.
29. Having established the above, the judge took note of the Claimant’s requests for the payment
of NGN 2,500,000 and NGN 170,000, corresponding to a sign-on fee and performance bonuses,
respectively. The judge, however, noted that these requests were not based on any contractual
provision, nor were they substantiated. Therefore, the judge decided to reject these requests.
30. Finally, the judge decided to reject the request for the payment of USD 1,000, corresponding to
the fine allegedly paid by the Claimant, due to the lack of evidence provided.
31. In light of the above, the judge concluded his deliberations in the present matter by establishing
that any further claim lodged by the Claimant is rejected.
32. Furthermore, the judge referred to par. 1 and 2 of art. 24bis 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.
33. In this regard, the judge pointed out 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 and for the maximum duration
of three entire and consecutive registration periods.
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34. Therefore, bearing in mind the above, the Dispute Resolution Chamber judge decided that, in
the event that the Respondent does not pay the amounts due to the Claimant within 45 days
as from the moment in which the Claimant, following the notification of the present decision,
communicates the relevant bank details to the Respondent, a ban from registering any new
players, either nationally or internationally, for the maximum duration of three entire and
consecutive registration periods shall become effective on the Respondent in accordance with
art. 24bis par. 2 and 4 of the Regulations.
35. Finally, the judge recalled that the above-mentioned ban will be lifted immediately and prior
to its complete serving upon payment of the due amount, in accordance with art. 24bis par. 3
of the Regulations.
III. Decision of the Dis pute Res olution Cham ber judge
1. The claim of the Claimant, Alberico Barbosa da Silva, is partially accepted.
2. The Respondent, Akwa United Football Club, has to pay to the Claimant the amount of Nigerian
Naira (NGN) 1,700,000 as outstanding remuneration, plus interest until the date of effective
payment as follows:
a. 5% p.a. as of 1 August 2019 on the amount of NGN 850,000;
b. 5% p.a. as of 1 September 2019 on the amount of NGN 850,000.
3. The Respondent has to pay to the Claimant the amount of NGN 12,750,000 as compensation for
breach of contract, plus interest of 5% p.a. as of 23 September 2019 until the date of effective
payment.
4. Any further claim of the Claimant is rejected.
5. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the
e-mail address as indicated on the cover letter of the present decision of the relevant bank
account to which the Respondent must pay the amount mentioned under points 2. and 3.
above.
6. The Respondent shall provide evidence of payment of the due amount in accordance with
points 2 and 3. above to FIFA to the e-mail address [email protected], duly translated, if need be,
into one of the official FIFA languages (English, French, German, Spanish).
7. In the event that the amounts due plus interest in accordance with points 2. and 3. above are
not paid by the Respondent w ithin 45 day s as from the notification by the Claimant of the
relevant bank details to the Respondent, the Respondent shall be banned from registering any
new players, either nationally or internationally, up until the due amount is paid and for the
maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the
Regulations on the Status and Transfer of Players).
8. The ban mentioned in point 7. above will be lifted immediately and prior to its complete
serving, once the due amounts are paid.
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9. In the event that the aforementioned sum plus interest is still not paid by the end of the ban of
three entire and consecutive registration periods, the present matter shall be submitted, upon
request, to FIFA’s Disciplinary Committee for consideration and a formal decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC.
Where such decisions contain confidential information, 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 20 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber).
Note relating to the appeal procedure:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly
within 21 days of receipt of notification of this decision and shall contain all the elements in
accordance with point 2 of the directives issued by the CAS. Within another 10 days following the
expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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