Labour Disputes
Texto da decisão
REF. FPSD-11927
Decision of the
Dispute Resolution Chamber
passed on 8 February 2024
regarding an employment-related dispute concerning
the player Sali Boubakary Li
BY:
Frans de Weger (the Netherlands), Chairperson
Stijn Boeykens (Belgium), member
André dos Santos Megale (Brazil), member
CLAIMANT:
Sali Boubakary Li, Cameroon
Represented by Mr Luca Smacchia
RESPONDENT:
Association Sportive de Kigali, Rwanda
Represented by Mr Yves Sangano
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REF. FPSD-11927
I. Facts of the case
1.
On 17 August 2022, the Cameroonian player Saly Boubakary Li (hereinafter: Claimant or
player) travelled to Rwanda to sign an employment contract with Rwandan club Association
Sportive de Kigali (hereinafter: club or Respondent) via a return flight ticket purchased by
the latter.
2.
On 18 August 2022, Claimant and the Respondent concluded an employment contract
(hereinafter: the Contract) valid as from the date of signature until the end of the season
2023-2024 (cf. TMS: 30 June 2024).
3.
In accordance with the Contract, the Respondent undertook to pay to the Claimant inter
alia the following remuneration:
-
USD 10,000 signature bonus;
USD 1,000 monthly salary.
4.
On 30 June 2023, the Claimant returned to Cameroon via the same flight ticket which had
originally been booked by the Respondent.
5.
On 27 August 2023, after not receiving a flight ticket or information regarding the new
season from the Respondent, the Claimant contacted the president of the latter to enquire
about his contractual situation.
6.
On 29 August 2023, the president of the Respondent replied to the Claimant, informing the
latter that he spoke to the secretary general and instructed him to call the Claimant and
discuss his potential reintegration into the team, and that if no solution were to be found,
the Claimant would be paid his outstanding salaries and an amicable resolution of the
Contract would be found.
7.
On 4 September 2023, the Claimant contacted the president of the Respondent once again
and remitted the following message:
“Hello president. You have decided that I should not return and that we should amicably
terminate the Contract, which I accept by not requesting any more than the USD 6,000 that
remain from my signature bonus.
If you change your mind, send me the flight ticket to return and perform the Contract, and
prepare the USD 6,000 from my signature bonus so that I can find some accommodation and
work peacefully.”
8.
On the same day, the Respondent sent the Claimant a letter in which it asserted, inter alia,
that the Claimant had been absent from training camp “for the past two months without
prior communication”, and that the Claimant’s “lack of commitment” would have
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REF. FPSD-11927
consequences, meaning that the Respondent decided to unilaterally cease paying the
Claimant his salary until he would rectify the situation, and once again “maintain a clear
line of communication”.
9.
On 7 September 2023, the Claimant sent the Respondent a default notice, requesting
USD 6,000 as the remainder of the signature bonus, and two monthly salaries in the
amount of USD 2,000 / 2,000,000 RWF to be paid within 10 days.
10. On 18 September 2023, the Claimant sent a further correspondence, in which he extended
the deadline to remit the due amounts for a further 5 days.
11. On 25 September 2023, the Claimant unilaterally terminated the Contract.
II. Proceedings before FIFA
12. On 25 October 2023, 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
13. In his claim, the player argued that the Respondent failed to remit two monthly salaries
(July 2023 and August 2023), as well as the remainder of the signature bonus of USD 6,000.
14. The Respondent had also allegedly failed to provide the Claimant with a return ticket to
continue performing the Contract after the summer break.
15. Furthermore, the Claimant asserted that the Respondent had been put in default several
times, as well as being granted a deadline of at least 15 days to remedy the contractual
breach.
16. The Claimant, thus, argued that he terminated the Contract with just cause on 25
September 2023.
17. The Claimant’s request for relief was as follows:
-
USD 8,000 as outstanding remuneration;
USD 10,000 as compensation;
USD 3,000 as additional compensation;
Interest as from the respective due dates.
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REF. FPSD-11927
b. Position of the Respondent
18. Despite having been invited to do so, the Respondent failed to provide a position to the
claim within the given deadline.
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REF. FPSD-11927
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. 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 25 October 2023 and submitted
for decision on 8 February 2024. Taking into account the wording of art. 34 of the
March 2023 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.
20. 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 May 2023 edition), the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Cameroonian player and a
Rwandan club.
21. 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 (May 2023 edition), and
considering that the present claim was lodged on 25 October 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
22. 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
23. 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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REF. FPSD-11927
i. Main legal discussion and considerations
24. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the basis of the present dispute concerned the
premature contractual termination by the Claimant.
25. In this context, the Chamber acknowledged that its task was to determine whether, based
on the evidence on file, whether the amounts claimed as outstanding had indeed not been
remitted by the Respondent, whether, based thereon, the Claimant could be held to have
had a just cause to terminate the Contract before its term, and lastly, what the
consequences of the contractual termination are vis-à-vis the parties.
26. Prior to proceeding with its analysis, the Chamber wished to recall the positions of the
parties, starting with the Claimant, according to whom just cause to prematurely terminate
the Contract had arisen on account of the Respondent’s failure to remit various amounts
thereunder.
27. On the other hand, the Chamber noted that the Respondent failed to provide a position to
the claim altogether.
28. Equally, the Chamber wished to emphasise the importance of the principle of the burden
of proof, pursuant to which a party that asserts a certain fact also bears the burden of
proving its veracity.
29. With this established, the Chamber recalled the wording of art. 14bis par. 1 of the
Regulations, pursuant to which a player may terminate his employment contract
prematurely provided that the club has defaulted on at least two monthly salaries and the
player has put the latter in default thereof, granting a deadline of at least 15 days to comply
with its obligations.
30. In the case at hand, the Claimant argued – without challenge from the Respondent – that
he had not been paid two monthly salaries, as well as part of his signature bonus, giving
rise to a total debt of USD 8,000. Furthermore, the Claimant demonstrated having put the
Respondent in default of payment of the above amount on 7 September 2023, before
unilaterally terminating the Contract on 25 September 2023.
31. In line with the above, the Chamber established that the requirements outlined under
art. 14bis of the Regulations had been met.
32. Consequently, the Chamber was able to conclude that the Contract had been terminated
with just cause by the Claimant.
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REF. FPSD-11927
ii. Consequences
33. 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.
34. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to two salaries of
USD 1,000 each, as well as part of the signature bonus in the amount of USD 6,000,
resulting in a total outstanding remuneration of USD 8,000.
35. 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.
USD 8,000.
36. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from the respective due dates of the unpaid
amounts until the date of effective payment, as follows:
-
On the amount of USD 6,000, as from 19 August 2022 until the date of effective
payment;
On the amount of USD 1,000, as from 1 August 2023 until the date of effective
payment;
On the amount of USD 1,000, as from 1 September 2023 until the date of effective
payment.
37. Having stated the above, the Chamber 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
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 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.
38. In application of the relevant provision, the Chamber held that it 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
contractual parties in the event of breach of contract. In this regard, the Chamber
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REF. FPSD-11927
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
39. As a consequence, the members of the Chamber 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 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.
40. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player 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 USD 10,000 (i.e. the residual value of the Contract as from
its termination) serves as the basis for the determination of the amount of compensation
for breach of contract.
41. In continuation, the Chamber 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.
42. In the matter at hand, the Claimant had remained unemployed following the contractual
termination, meaning that he was unable to mitigate his damages.
43. Equally, the Chamber pointed out that, based on the fact that the Claimant had not
mitigated his damages, no additional compensation was payable in the case at hand.
44. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of USD 10,000 to the player, which was to be considered a reasonable and justified amount
of compensation for breach of contract in the present matter.
45. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 26 September 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
46. 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
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REF. FPSD-11927
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.
47. 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.
48. 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.
49. 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.
50. 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
51. 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.
52. 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.
53. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-11927
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Sali Boubakary Li, is partially accepted.
2.
The Respondent, Association Sportive de Kigali, must pay to the Claimant the following
amount(s):
- USD 8,000 as outstanding remuneration plus 5% interest p.a. as from until the date of
effective payment;
- 5% interest p.a. over the amount of USD 6,000 as from 19 August 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of USD 1,000 as from 1 August 2023 until the date of
effective payment;
- 5% interest p.a. over the amount of USD 1,000 as from 1 September 2023 until the date
of effective payment.
- USD 10,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 26 September 2023 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. 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.
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REF. FPSD-11927
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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