Labour Disputes
Texto da decisão
REF FPSD-8542
Decision of the
Dispute Resolution Chamber
passed on 23 March 2023
regarding an employment-related dispute concerning
the player Ango Denil
COMPOSITION:
HENDEL, Clifford J. (USA & France), Deputy Chairperson
COLUCCI, Michele (Italy), member
FLORES CHEMOR, Mario (Mexico), member
CLAIMANT:
Ango Denil, Cameroon
Represented by Islam Hisham & Shimaa El-Daly
RESPONDENT:
Jableh SC, Syria
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I. Facts of the case
1.
On 1 August 2022, the player Ango Denil from Cameroon (hereinafter: the Claimant or the
player) and the club Jableh SC from Syria (hereinafter: the Respondent or the club)
concluded an employment contract (hereinafter: the contract) valid as from the same date
until 1 June 2023.
2.
According to the contract, the club undertook to pay the player:
a. USD 5,000 as sign-on fee in cash upon signature of the contract;
b. USD 900 as monthly salary, payable at the beginning of each calendar month;
c. USD 4,000 as fixed fee “paid in case between the outgoing stage and the return
stage”.
3.
According to the information displayed in the Transfer Matching System (TMS), the season
2022/2023 in Syria runs from 12 August 2022 until 30 April 2023.
4.
On 1 August 2022, the club entered a transfer instruction in TMS to register the player.
5.
On 2 August 2022, the player was registered with the club.
6.
On 19 October 2022, the player sent an email to the club, stating as follows (quoted
verbatim):
“The claim is about the Cameroonian player Daniel Ango who signed the contract with the
Club which did not help the Player to be able to attend to the Club. Therefore, we want you
to settle this matter between the player and the club before submitting a complaint to FIFA
and request the Club to pay the value of the contract is equal 18,000 US dollars a season.
We have a full confidence in you to settle this matter. Thank you and appreciation.”
7.
On 12 November 2022, the player sent a warning notice to the club, claiming the
outstanding amount of the sign-on fee for USD 5,000 plus four salaries between August
and November 2022 for USD 3,600. The player equally stated as detailed below and
granted the club 15 days to cure its breach:
“Furthermore, the Club prevented the Player from attending the training sessions with the
team, as the player neither receive an entry visa to join the team before the pre-season
started nor received any flight tickets or information regarding his accommodation in Syria
and never received any instructions regarding the date or the place of the training; all which
are considered violations to the fundamental right of the professional players as well as to
FIFA –RSTP”.
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8.
On 26 November 2022, the club replied to the player and stated as follows (quoted
verbatim):
“1. After completing the signing of the contract and requesting the player’s international
transfer certificate, the player requested additional fees, and this is contrary to what was
stipulated in the contract in its Article / 6 - Par 3 /.
2. The club requested that the player come to the club’s headquarters to receive the first
installment of the contract and start implementing the contract, but to date he has not
complied, and therefore the club did not refuse to pay the player’s rights, and the failure of
that was due to the player. Here it should be clarified (There is a ban on bank transfers due
to penalties)
3. The contract stated that the player’s address is (Latakia - Jableh), which is confirmed by
Article / 8- Par 14 / of the contract, and the player has not come to the club’s headquarters
since the contract was signed on 1/ 8/2022.
4. The club’s responsibilities did not provide for securing a flight reservation for the player,
especially the player’s address is in the city of the club’s headquarters.
5. The club’s responsibilities did not stipulate any information related to the player’s
residence in Syria or the entry visa and what is the club’s role in that, especially the player’s
address is Latakia - Jableh, a city located in Syria.
6. The player refused to participate in exercises and matches, and this is contrary to the
contract, Article /5/, and it is not the club that refused the player.
7. The player’s obligations stated that he would not leave Syria without an official letter, but
the player did not comply with that.
8. The salaries are in exchange for the player’s services and for the implementation of the
contract (Article 6 of the contract), but the player did not fulfill his obligation to this date,
and did not come to receive The first installment of the contract.
9. The instructions of the Syrian Football Association allow clubs to register foreign players
on their lists, and after signing the contract with the player through his agent, raising his
name on the club’s lists and paying all fees, the player refused to attend
This behavior exposed the club to damage and confirmed financial loss, and the player is
obligated to legal compensation because of that (Article 7 of the contract).
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Accordingly, we assure you that the contract was not executed because the player did not
comply.
The club wishes to complete the implementation of the contract and pay the first installment
of the contract, provided that the player attends within 15 days from the date of this notice
to the club’s headquarters in Lattakia Governorate – Jableh.
With an emphasis on Article /16/ FIFA – RSTP Refusal will give the club just cause for
termination of the contract (Article 14 FIFA - RSTP), and give the club the right to claim
compensation (Article 17 FIFA - RSTP). Especially since the player aims to force the club to
terminate the contract through his actions, and this is punishable under Article (14 Par 2)
FIFA – RSTP”
9.
On 30 November 2022, the player replied to the club’s notice and rejected the latter’s
position. He denied having requested any additional fees and having refused to attend to
the club’s headquarters to receive his sign-on fee. The player furthermore complained
that the club did not procure his entry visa to Syria, preventing him from providing his
services – he accordingly rejected the notion that he refused to train and join the club. He
then reiterated the contents of his previous notice regarding the late payments and
granted a final deadline for the club to comply until 5 December 2022.
10. By means of a letter dated 4 December 2022, the club replied and stated as follows
(quoted verbatim):
“First of all, we are surprised by someone who works in the field of sports law and represents
a sports company, accusing a club of lying, manipulation and evasion, especially since the
contract and its obligations are clear and specific.
Commenting on what was stated in your letter, we clarify the following:
Our letter did not include any recognition of any dues or rights of the player, especially since
these dues are conditional on the player’s implementation of his obligations. If the player is
bound to enforce, the club is bound by any entitlement to the player.
As for the work permit, this is what the local law imposes on the club, and the club is ready
for that when the player is present, as this permit cannot be issued while the player is
abroad.
As for the entry visa - while emphasizing that it is not stipulated in the contract - the club is
ready to issue it as soon as the date of the player’s attendance and the flight ticket are sent.
Accordingly, we confirm that all the information and procedures contained in your letter
are incorrect, and we also confirm that the accusations against the club are incorrect.
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The origin is that the player is in Syria, and the club is ready to fully implement its obligations
when the player comes to the club’s headquarters.
Finally, we confirm what was stated in our previous message, especially with regard to the
time limit granted to the player to implement his commitment.”
11. On 5 December 2022, the player gave the club a final ultimatum of 24h for the club to pay
his overdue payables, this time including the salary of December 2022. The player equally
provided a copy of his passport, so the club procured his entry visa to Syria.
12. On 6 December 2022, the club replied to the player as follows (quoted verbatim):
“We assure you of the club’s commitment to the contract, and we also assure you that what
was stated in your letter regarding the club’s refusal to implement its obligations is incorrect.
Salaries are linked to player commitment The airline ticket was not stipulated in the
contract, and the work permit is linked to the player’s presence.
As for the entry visa, it is proven that the player resides in Syria.
The club asked to set a date for the player’s arrival so that the entry visa is issued, and no
clear answer has been received to date.
In good faith on the part of the club, an entry visa will be issued to the player, which requires
a minimum of two working days, and it will be sent to you We confirm all of what was stated
in our previous message if it is not adhered to.”
13. On 10 December 2022, on the basis of a lack of entry visa as well as overdue payables,
the player terminated the contract.
14. In accordance with TMS, the player was engaged by club Shabab Al Jabal on 3 February
2023 against payment of a total remuneration of USD 10,000.
15. On 13 December 2022, the player lodged a claim against the club in front of FIFA and
requested outstanding remuneration and compensation for breach of contract.
16. In his claim, the player argued that he had just cause to terminate the contract on 10
December 2022 on the basis of both articles 14 and 14bis of the Regulations on the Status
and Transfer of Players (RSTP) given the club’s breaches of its contractual duties. In doing
so, the player argued that he had 5 salaries unpaid plus the sign-on fee, and that the club
failed to procure his entry visa and work permit.
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17. The player filed the following request for relief (quoted verbatim):
“In view of all the above, we request this Honorable Chamber:
1) To accept this claim against the Respondent.
2) To consider the Respondent liable for the breach without just cause of the Employment
Contract.
3) To condemn the Respondent to pay the Claimant an amount of USD 9,500-/ as the
outstanding salaries according to articles 12bis and 14bis of FIFA-RSTP divided as
follows:
a) Signing fee: an amount of USD 5,000-/ “five-thousand dollars” plus 5% interest should
be calculated as from 01 August 2022.
b) Salary’s August 2022: an amount of USD 900-/ “nine hundred dollars” plus 5% interest
should be calculated as from 01 August 2022.
c) Salary’s September 2022: an amount of USD 900-/ “nine hundred dollars” plus 5%
interest should be calculated as from 01 September 2022.
d) Salary’s October 2022: an amount of USD 900-/ “nine hundred dollars” plus 5%
interest should be calculated as from 01 October 2022.
e) Salary’s November 2022: an amount of USD 900-/ “nine hundred dollars” plus 5%
interest should be calculated as from 01 November 2022.
f) Salary’s December 2022: an amount of USD 900-/ “nine hundred dollars” plus 5%
interest should be calculated as from 01 December 2022
4) To condemn the Respondent to pay the Claimant compensation as a residual value of
the Contract according to article 17 Para.1 (i) of FIFA RSTP for the breaches have been
made to the Contract, in amount of USD 9,400-/ “nine thousand and four hundred
dollars” plus 5% interest to be calculated as from 01 August 2022
5) To condemn the Respondent to pay the claimant an additional head of compensation
under the specificity of sport as provided for under article 17. Para 1 of FIFA-RSTP in the
amount of USD 5,400-/ “five thousand and four hundred dollars” plus 5% interest to be
calculated as from 01 August 2022
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6) To condemn the Respondent to pay interests at a rate of five percent (5%) per annum
over entire amounts requested from the due date of each payment until the date of the
effective payment.
7) To ban the Respondent from registering any new players, either nationally or
internationally, for two registration periods under article 17, paragraph 4 of the FIFA
RSTP; AND
8) To impose the Respondent whatever sanctions this honorable Chamber deems fit in
accordance with article 12 bis of the FIFA RSTP.
9) To fix a sum of USD (5,000-/) “five thousand dollars”, to be paid by the Respondent to
the Claimant, to help the payment of its legal fees and costs.
10 As a consequence of the above, to condemn the Respondent to pay all expenses and
costs of the present proceedings, if any.”
18. The club did not reply to the claim.
II. 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 13 December 2022 and
submitted for decision on 23 March 2023. Taking into account the wording of art. 34 of
the October 2022 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 par.
1 lit. b) of the RSTP (October 2022 edition), the Dispute Resolution Chamber is competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Cameroonian player and a Syrian 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 RSTP (October 2022 edition), and considering that the present claim was
lodged on 13 December 2022, the cited edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
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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 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.
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 is a claim of a player against a club for breach of
contract.
25. According to the player, he terminated the contract with just cause due to outstanding
remuneration and because the club failed to provide him with an entry visa and work
permit. The club for its part failed to provide a reply.
26. As such, the DRC confirmed that it shall decide based on the documentation and evidence
available on file, that is, that filed by the player in line with art. 13 of the Procedural Rules.
The DRC furthermore stressed that the absence of a reply by the club left the claim largely
uncontested (except for the letters which indicated, to some degree, the position of the
club). For the reasons detailed in continuation, the DRC found this lack of response
decisive in its ruling.
27. In this context, the Chamber acknowledged that its task was to determine whether the
player had just cause to terminate the contract, and the corresponding consequences.
28. In doing so, the DRC started by recalling that according to the longstanding jurisprudence
of the Football Tribunal, as a general rule, clubs shall be liable to take all necessary
administrative action to ensure that that a player’s permit is granted (or renewed),
allowing him to render the services under the employment contract. Put differently: “as
per the established jurisprudence, it is the club’s responsibility to obtain these documents (on
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time). As a result, a player will be considered to have a just cause to terminate their contract if
the required permits are not available in good time. However, a player is expected to cooperate
in completing the processes associated with obtaining these documents. Moreover, considering
the principle that terminating a contract should be a last resort, a warning should be sent to
the club ahead of any move to put an end to the contractual relationship” (cf. Commentary
on the Regulations on the Status and Transfer of Players – Edition 2021, p. 115).
29. Aside from the cited case law, the DRC remarked that the aforementioned conclusion is
also in line with the jurisprudence of the Court of Arbitration for Sport (CAS), which
confirms that players must cooperate with the efforts to obtain a visa or work permit, as
well as show sufficient degree of diligence to comply with the administrative formalities
(see, for example, CAS 2017/A/5092).
30. On this note, the Chamber considered that the club, quite unequivocally, did not
undertake any action to engage the player and make sure that the contract was carried
out properly, despite alleging, in reply to the player’s notices, that it was (still) interested
in his services.
31. Notwithstanding the above, and on the other hand, the DRC could not overlook the fact
that the player waited 2.5 months to first request a position of the club regarding his
arrival, in a rather vague manner. In particular, the Chamber underlined that it was only
on 12 November 2022 (i.e., almost 4 months after the contract was signed and 3 months
after the season had already started) that the player in fact requested the club to provide
him with his entry visa together with his overdue payables. The Chamber also noted in
this regard that the contract does not bear an obligation for the club to provide the player
with flight tickets.
32. At the same time, the DRC acknowledged that the player admits having never travelled to
Syria nor rendering services to the club. This fact, combined with the lack of diligence on
the player’s side, demonstrates – in the Chamber’s view – that he was not entirely
interested in complying with the contract, and only did so after a considerable time had
elapsed.
33. Given the cited factors, on weighting the position of both parties and in particular the
absence of a formal reply to the claim, combined with the very specific circumstances of
the case, the Chamber concluded that the club, to a stronger degree, was responsible for
the non-execution of the contract, as it never contributed, or engaged in any action, to
permit the player to travel to Syria. As such, it was the Chamber’s conclusion that the
termination of the contract by hand of the player on 10 December 2022 was immaterial,
for the performance of said contract had already been hindered many months before by
the club.
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34. In other words, the DRC decided that the club’s failure to engage the player resulted in
the non-execution of the contract, and prevented the player from rendering his services,
which outweighs the player’s absence from Syria and the fact that he never provided
services. As such, in the Chamber’s view, this behaviour from the club amounts to a severe
breach of contract by the same, akin to a termination without just cause, and entitles the
player to be compensated for said breach.
ii. Consequences
35. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent. In
doing so, the Chamber turned to the calculation of the amount of compensation payable
to the player by the club in the case at stake.
36. Accordingly, 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.
37. 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
established that no such compensation clause was included in the employment contract
at the basis of the matter at stake.
38. As a consequence, 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.
39. 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,
and clarified that, because the club hindered the performance of the contract, its entire
value was to be factored into the calculation. Consequently, the Chamber concluded that
the amount of USD 22,900 (i.e., the contract’s entire value) serves as the basis for the
determination of the amount of compensation for breach of contract.
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40. In continuation, the Chamber verified as to whether the player had signed an
employment contract with another club during the relevant period, 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 considered in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
41. Indeed, the player found employment with Shabab Al Jabal. In accordance with the
information in TMS, the player was entitled to approximately a total remuneration of USD
10,000 for the relevant period. Therefore, the Chamber concluded that the player
mitigated his damages in that amount.
42. Subsequently, the Chamber 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 Chamber confirmed that the contract’s
termination did not take due to said reason, in that it was caused by the club (without just
cause) and not the player (with just cause). Therefore, the DRC decided that the player
shall not receive additional compensation.
43. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of USD
12,900 to the player (i.e., USD 22,900 minus USD 10,000), which was to be considered a
reasonable and justified amount of compensation for breach of contract in the present
matter.
44. 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 10 December 2022 until the date of effective
payment, for said date is when the parties effectively were separated beyond any repair.
iii. Compliance with monetary decisions
45. 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
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.
46. 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
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maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
47. 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.
48. 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.
49. 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
50. 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.
51. 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.
52. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ango Denil, is partially accepted.
2.
The Respondent, Jableh SC, has to pay to the Claimant USD 12,900 as compensation for
breach of contract without just cause plus 5% interest p.a. as from 10 December 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.
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.
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).
CONTACT INFORMATION
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