Dispute Resolution Chamber
Texto da decisão
REF 20-01383 (FPSD-208)
Decision of the
Dispute Resolution Chamber
passed on 6 May 2021
regarding an employment-related dispute concerning
the player Camara Oumar Tourad
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Angela Collins (Australia), member
Stefano La Porta (Italy), member
CLAIMANT:
CAMARA Oumar Tourad, Guinea
Represented by Nurhana Dervishi
RESPONDENT:
FC Beselidhja, Albania
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I. Facts
1.
On 28 January 2017, the Guinean player, CAMARA Oumar Tourad (hereinafter: the Claimant or
the player) and the Albanian club, FC Beselidhja (hereinafter: the Respondent or the club)
concluded an employment contract (hereinafter: ‘the first contract’) valid from 28 January 2017
until 31 December 2021.
2.
Pursuant to article IX of the first contract, the Claimant were entitled to the following
remuneration:
“For the accomplished services toward the Club, the Player will benefit 30.000 (thirty thousand)
ALL per month as well as social and health contributions.”
3.
On 1 June 2019, the Claimant and the Respondent concluded another contract (hereinafter: the
second contract) valid from 1 June 2019 until 31 May 2024.
4.
Pursuant to article X par. 1 of the second contract, the Claimant were entitled to monthly
remuneration of Albanian Lek (ALL) 30,000 as well as social and health contributions.
5.
In his claim, the Claimant indicated that the Respondent on numerous occasions failed to comply
with its contractual obligations, and listed the outstanding remuneration still due and payable to
the Claimant as follows:
a)
2017
-
According to the Claimant, the only remuneration, which he received from the
Respondent during 2017 was payment in the amount of ALL 102,660, corresponding to
a part of the salaries for the months of February, March, April and May 2017, with the
balance still owed by the club being ALL 17,340.
Furthermore, the Respondent still owes the Claimant the payment for the remaining
months June, July, August, September, October, November and December 2017 in the
total amount of ALL 210,000.
In total for year 2017, the outstanding salary due to the player is in the amount of ALL
227,340.
-
-
b)
2018
-
outstanding salaries due for the months of January, February, March, April, May, June
and July 2018, in the amount to ALL 210,000.
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REF 20-01383 (FPSD-208)
c)
2019
-
the Claimant did not receive any remuneration from the Respondent throughout the
entire year, however from 22 July 2019 to 30 November 2019, the player was loaned to
FK Kukesi and was paid on a monthly basis by this club.
Accordingly, the outstanding salaries due to the Claimant is in the amount of ALL
228,000 corresponding “to the salary of 7,6 months which excludes the loan period”.
-
d)
2020
-
Outstanding salary due is for a period of 6 months in the amount of ALL 180,000.
6.
On 24 July 2020, the Claimant sent a notice to the Respondent indicating that it has not complied
with its financial obligations in respect of the contract and requested payment of outstanding
remuneration in the amount of ALL 2,255,340 (ALL 227,340 + ALL 210,000 + ALL 228,000 + ALL
180,000), by granting the Respondent a deadline of 15 days to comply, however to no avail.
7.
According to the Claimant, he could not conclude a contract with another club as he was still
under contract with the Respondent.
8.
On 25 September 2020, the Claimant lodged a claim before FIFA requesting the following relief,
payment from the Respondent in the amount of ALL 2,255.340 plus 5% interest, corresponding
to:
a)
b)
9.
outstanding salaries in the amount of ALL 845,340 (ALL 227,340 + ALL 210,000 + ALL
228,000 + ALL 180,000);
the residual value of the contract (1 July 2020 to 31 May 2024) in the amount of ALL
1,141,000.
Furthermore, the Claimant requested that the FIFA DRC determine that the termination of the
contract was by just cause and that procedural cost should be paid by the Respondent.
10. In its reply to the claim, the Respondent indicated that the Claimant “has no rights for the lawsuit
he has filed” and made reference to the following documents, which according to the Respondent
prove that the Claimant has no claim:
a)
a letter addressed to the Claimant, dated 4 August 2020, in terms of which the Respondent
expressed the following:
-
the has not participated in the training process and sports activities for a long period;
since November 2019, the player terminated the loan contract with FK Kukesi, he has not
returned to the club;
the club has complied payments in terms of the contract, prior to as his abandonment of
employment;
-
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-
the Respondent further emphasised that when the player he signed the new contract in
2019 he has no complaints or remarks about the previous treatment;
furthermore after conclusion of the contract in 2019, the player was immediately loaned to
the Kukesi team ;
the Respondent is surprised that the Claimant states that, the club owes him 7.6 months or
ALL 228,000 for the year, 2019.
b)
a payroll list for the following periods, indicating payments made to the Claimant :
-
“PAYROLL OF THE FOOTBALL TEAM "BESELIDHJA" 2018”:
September & August - ALL 77,000 each month;
October & November – ALL 25,500 each month;
December - ALL 75,500
-
“PAYROLL OF THE FOOTBALL TEAM "BESELIDHJA" 2018”:
January to July paid in the amount of ALL 75,500 each month
11. The Respondent additionally confirmed that it concluded a contract with the Claimant, which is
valid until 31 May 2024.
12. According to the Respondent, it had loaned the player to FK Kukesi, Albania from 22 July 2019
until the end of the football season and stipulated the following:
“According to the information we have, the football player Oumar Tourad Camara has left the
team of FK Kukesi (terminating the loan contract with KF Kukesi unilaterally)' and without
receiving our consent as the mother club). Also, this footballer does not participate in the training
process and sports activities according to the calendar planned by the Albanian Football Federation
(AFF), specifically from January 2020 until today that we are writing to you where he was and is
under contract with KF Beselidhja Lezha.”
13. The Respondent indicated that it has sent a weekly update since 6 January 2020 until 25
November 2020 to the Albanian Football Federation, notifying them that the player has not
appeared for training.
14. Additionally the Respondent stated the following:
“We have been very correct with the contracts and payments as before his abandonment of
employment, but also after, with our calls to return to KF Beselidhja, according to the contract,
footballer Oumar Tourad Camara continues with complaints and by claiming inexistent obligations
from KF Beselidhja”
15. The Respondent further emphasised that the Claimant did not submit any complaint to the
Albanian Football Federation, according to chapter XVII of the contract, which indicates that “the
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parties agree that disputes that may arise during the implementation of the contract, will try to
resolve with understanding, otherwise, competent for their resolution will be the National
Chamber of Conflict”.
16. In regard to the claims as submitted by the Claimant for the specified periods, the Respondent
addressed each claim and brought forward the following points:
-
“for the period February - May 2017 - liabilities for the amount of 17,340 leke do not
stand because KF Beselidhja Lezha sends the gross payment (remuneration) of 30,000 leke
that has in the contract and the income tax deduction of 15% is made based on Law no.8438
dated 28 .12.1998 "On income tax".
-
for the period June - December 2017 - liabilities in the amount of 210,000 leke do not
stand as the payment in cash in the amount of 250000 leke is proved, therefore 40 ,000 leke
more than he claims from KF Beselidhja Lezha.
-
for the period January - July 2018 , liabilities for the amount of 210000 leke do not stand
because for two months he received in cash 154400 leke and 280900 in bank or 434800
leke for 2018, or 224800 leke more than he claims from KF Beselidhja Lezha
-
for the period January - July 2019 , liabilities for the amount of 228000 leke do not stand
because for 2019 through bank he has received 528500 or 300500 leke more than he claims
from KF Bcselidhja Lezha
-
The claim in points 8 and 9 that has not been paid by Beselidhja for the amount of 180,000
leke do not stand because there is no way to pay because he was loaned.
-
for the 47 months for the amount of 1410000 leke does not stand because in any, public or
private Institution as well as in any Albanian law, International or FSHF or FIFA guidelines and
regulations, is determined that the employment institution (employer) or the contracting
institution has to pay and employee who has abandoned the job for no reason and gives no
reason to justify his abandonment, but also closes the information (communication)
addresses.”
II. Considerations of the Dispute Resolution Chamber
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. Taking into account the wording
of art. 21 of the 2021 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
2. Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural Rules
and emphasised that, in accordance with art. 24 par. 1 in combination with art.22 lit. b) of the
Regulations on the Status and Transfer of Players, the Dispute Resolution Chamber is competent
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to deal with matters, which concern employment-related disputes with an international dimension
between players and clubs such as the present one, which involves a player from Guinea and a
club from Albania.
3.
In continuation, the Dispute Resolution Chamber analysed which edition of the Regulations of the
Status and Transfer of Players should be applicable to the present matter. In this respect, the
Dispute Resolution Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players, and considering that the claim was lodged on
25 September 2020, the August 2020 edition of the aforementioned regulations (hereinafter: the
Regulations) is applicable to the matter at hand.
4.
With the above having been established, the Dispute Resolution Chamber entered into the
substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the
documents contained in the file. However, the Dispute Resolution Chamber emphasised that in
the following considerations it will refer only to facts, arguments and documentary evidence,
which it considered pertinent for the assessment of the matter at hand.
5. In particular, the DRC noted that on 31 August 2017, the Claimant and the Respondent
concluded an employment contract valid from 28 January 2017 until 31 December 2021, based
on which the Claimant was entitled to a monthly salary of ALL 30,000. Furthermore, on 1 June
2019, the parties signed a second employment contract valid as from 1 June 2019 until 31 May
2024, according to which the Claimant was entitled to a monthly salary of ALL 30,000.
6.
In this respect, the DRC noted that the Claimant lodged a claim for outstanding remuneration
and compensation for breach of contract. The Chamber further noted that that the Claimant
requested to be awarded the payment of ALL 845,340 as outstanding salaries for the following
periods:
2017: ALL 227,340
2018: -ALL 210,000
2019: ALL 228,000
2020: ALL 180,000
7. What is more, the Claimant further wished to be awarded the amount of ALL 1,141,000 as
compensation for breach of contract, corresponding to the residual value of the contract (1 July
2020 to 31 May 2024).
8. Furthermore, the members of the DRC took note of the fact that, on 24 July 2020, the Claimant
had sent a notice to the Respondent and had put the latter in default of payment of the amount
of ALL 2,255,340, setting a 15 days’ time limit in order to remedy the default.
9. The DRC highlighted that although the aforesaid default notice were send to the Respondent, the
Claimant presented no formal termination letter which was issued to the Respondent, on the basis
of this fact it could only consider the part of the Claimant’s claim which relates to the several
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salaries which were outstanding and due to the Claimant at the date of his default notice, i.e. 24
July 2020.
10. The members of the DRC considered that – in view of the foregoing – first of all, they should
examine whether the present claim, or any part of it, is barred by the statute of limitations, given
the fact that the Claimant lodged his claim against the Respondent in front of FIFA on 25
September 2020 and taking into account that the Claimant’s claim extended over a period of 4
years, from 2017 to 2020.
11. In this context, the DRC was keen to emphasise the content of art. 25 par. 5 of the Regulations
which states that the FIFA decision-making bodies shall not hear any dispute if more than two
years have elapsed since the event giving rise to the dispute. Taking into account that the Claimant
lodged the present claim in front of FIFA against the Respondent on 25 September 2020, the
Chamber concluded that all the amounts that fell due before 25 September 2018 are time-barred
and that the only admissible part of the claim will be the outstanding remuneration and
compensation claimed related to the period between 25 September 2018 and 31 May 2024.
12. In continuation, the DRC noted that the Respondent, in its defence alleged it made payments to
the Claimant higher than the due amounts and provided a payroll list, indicating amounts paid.
In this respect, the DRC however concluded that this payroll list seems to be an internal list of the
Respondent and decided that the said documents could not be considered as a legitimate basis
to justify any deductions from the amount claimed by the Claimant. Furthermore, the Respondent
had not sufficiently substantiated its defence, as it did not present any conclusive documentary
evidence, which could corroborate that higher amounts then the salary due were paid to the
Claimant.
13. The DRC therefore concurred that the Respondent must fulfil its obligations as per the
employment contract relating to the outstanding remuneration in accordance with the general
legal principle of “pacta sunt servanda”.
14. Consequently, the DRC decided that the Respondent is liable to pay to the Claimant the
remuneration that was outstanding at the date of the default notice, i.e. the total amount of ALL
408,000, which corresponds to the outstanding salaries due to the Claimant for the period in
2019 prior to the loan period (January – 21 July 2019) in the amount of ALL 198,000 plus the
December 2019 salary in the amount of ALL 30,000 and the outstanding salary due in 2020 for
a period of 6 months (January – June 2020) in the amount of ALL 180,000.
15. In addition, taking into consideration the Claimant’s request as well as the constant practice of
the Dispute Resolution Chamber in this regard, the DRC decided to award the Claimant interest
at the rate of 5% p.a. on the amount of ALL 408,000 from the date of claim, i.e. 25 September
2020.
16. In relation to the Claimant’s request for compensation for breach of contract, the Chamber
concluded that it cannot be awarded, as it was in principle the obligation of the Claimant to return
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to the Respondent to offer his services after the loan period and in addition thereto no formal
termination letter which was issued to the Respondent.
17. The DRC concluded its deliberations in the present matter by establishing that any further claim
lodged by the Claimant is rejected.
18. Furthermore, the DRC referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate
that, with his 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.
19. In this regard, the DRC 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.
20. Therefore, bearing in mind the above, the DRC 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.
21. Finally, 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. 24bis par. 3 of the
Regulations.
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III.
Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, CAMARA Oumar Tourad, is partially accepted.
2. The Respondent, FC Beselidhja, has to pay to the Claimant, the amount of ALL 408,000 plus 5%
interest p.a. as from 25 September 2020 until the date of effective payment:
3. Any further claims of the Claimant are rejected.
4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
5. The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
6. In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. 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. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.
7. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED 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) 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 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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