Labour Disputes
Texto da decisão
REF. FPSD-12322
Decision of the
Dispute Resolution Chamber
passed on 21 March 2024
regarding an employment-related dispute concerning
the player Elhadji Pape Djibril DIAW
BY:
Clifford J. HENDEL (USA & France), Deputy Chairperson
Gonzalo DE MEDINILLA (Spain), member
Alejandro ATILIO TARABORELLI (Argentina), member
CLAIMANT:
Elhadji Pape Djibril DIAW, Senegal
RESPONDENT:
FC Rukh Lviv, Ukraine
pg. 2
REF. FPSD-12322
I. Facts of the case
1. On 25 January 2022, the player and FC Rukh Lviv concluded an employment agreement
valid as from 25 January 2022 until 30 June 2025.
2. The player was entitled to UAH 6,500 per month (article 4.1 of the employment contract).
3. The contract further stipulated the following:
“4.2. Allowance, withholding and/or payment of taxes and other obligatory payments from the
earnings, which are paid by Club in favour of Footballer is executed in accordance with valid
legislation. At that, Parties reserve the right to agree separately in respctive annex to this
Contract the peculiarities of obligatory payments execution dealing the payments indicated in
the i.4.2 of this Contract. “
4. On the same date, the parties concluded and “Agreement on incentive money payments”,
stipulating the following:
“1. In accordance with Article 4.2 of the labor contract concluded between the Parties, aiming
to foster motivation and selflessness in the Footballer and ensure the fulfillment of specific
tasks assigned to the Club's teams, the Parties have agreed to institute and make payments to
the Footballer during the term of validity of the labor contract. These payments, hereinafter
referred to as "Payment," will be made in monthly incentive amounts of 274,200.00 (two
hundred seventy-four thousand two hundred, equivalent to 9,800 USD) net hryvnias per month.
(…)
1.2 (….)the Parties agreed on additional payment by the Club to the Player for signing an
employment conntract valid for three and half years in the total amount of 84.000 (…) net US
dollars at the exchange rate of the National Bank of Ukraine on the day of payment, according
to the following schedule:
36,000.00 (thirty-six thousand) net US dollars - until January 30, 2022 (inclusive);
24,000.00 (twenty-four thousand) net US dollars - until August 1, 2023 (inclusive).
24,000.00 (twenty-four thousand) net US dollars - until August 1, 2024 (inclusive)."
5. On 21 March 2022, FC Rukh Lviv and the Polish club MZKS Arka Gdynia concluded a loan
agreement valid until the end of the 2021/2022 season. Accordingly, both club stipulated
that “Lviv confirm that the Player's current employment relationship with FC Rukh Lviv was
terminated nor approved as suspended - for the 2021/22 season – due to FIFA and UEF A
temporary regulations special regulation due to the Russian invasion of Ukraine and that the
Player was provided with a Lviv approval to sign” (clause 2.3. of the transfer agreement).
6. On 21 June 2023, the player sent a letter to the club and suspended the contract,
indicating the following:
“On 25 January 2022, we concluded a contract, by which you hired me as a professional football
player
unti 30 June 2025 (contract bearing over four sportive season).
As a Senegalese nationality and in application of Annexe 7 of the FIFA RSTP, I hereby inform
you of my
decision to unilaterally suspend my employment contract with your club until 30 June 2024.”
pg. 3
REF. FPSD-12322
7. On 13 July 2022, FC Rukh Lviv and the French club, Stade Lavallois, concluded a loan
agreement, by means of which the player would be transferred on loan as from 13 July
2022 until 30 June 2023.
8. On 31 May 2023, the player sent a default notice and requested the following:
“- my salary of February 2022 : 9 800 USD + 6 500 UAH
- my bonus when I arrived at the club of 36 000 net US USD payable until 30 January 2022,
Ihave only received 10 000 USD so far, so I am still missing 26 000 USD.
(…)
Consequently, I hereby put you in notice to remedy these violations and to pay to my bank
account within the next 10 days the net amounts :
- 9 800 USD + 6 500 UAH ;
- 26 000 USD”
9. The club provided a copy in Ukrainian and English of the Tax Code of Ukraine which, inter
alia, establish the following:
“Article 162. Tax payers
162.1. Tax payers are:
162.1.1. a resident natural person who receives income both from the source of their origin in
Ukraine and foreign income
(…)
Article 167. Tax rates
167.1. The tax rate is 18 percent of the tax base for income accrued (paid, provided) …
including, but not
exclusively, in the form of: wages, other incentive and compensation payments or other
payments and rewards
that are accrued (paid, provided) to the payer in connection with labor relations and civil law
contracts.
(…)
Section 10. Other Transitional Provisions
16-1. Temporarily, until the decision of the Verkhovna Rada of Ukraine on the completion of
the reform of the Armed Forces of Ukraine enters into force, a military levy is
established.
1.1. Fee payers are the persons specified in Clause 162.1 of Article 162 of this Code.
1.2. The object of taxation with the fee is income defined by Article 163 of this Code.
1.3. The tax rate is 1.5 percent of the tax object defined in subsection 1.2 of this clause.”
10. The club further provided a copy of the Decree No. 18 of the Board of Directors of the
National Bank of Ukraine, which established the following:
“14. Authorized institutions are prohibited from carrying out cross-border transfers of currency
values from Ukraine/transfer of funds to correspondent accounts of non-resident banks in
hryvnias/foreign currency opened in resident banks”
pg. 4
REF. FPSD-12322
II. Proceedings before FIFA
11. On 19 October 2023, the player lodged a claim before the FIFA Football Tribunal for outstanding
remuneration and requested the following:
- UAH 6,500 net as his salary for the month of February 2022, plus 5% interest p.a. from 1 March
2022 ;
- USD 9,800 net in respect of his additional remuneration known as "monthly incentive money
payments" for the month of February 2022, plus 5% interest p.a. with effect from 1 March 2022 ;
- USD 26,000 net in respect of the first instalment of his signing bonus, plus 5% interest p.a. from 1
February 2022;
- EUR 3,000 in legal costs.
12. The player argued that as per art. 4.2. of the contract, salaries are net.
13. In its reply, the club explained that, due to the Russian invasion and martial law in Ukraine starting
on 24 February, 2022, international payments were restricted, hindering the club's ability to pay the
player.
The club explained that the player left Ukraine shortly after the outbreak of the war and that, in such
conditions, any international payments in his favour, related to labour relations with him (regardless
of the type of currency), could not be made by the Club due to the relevant regulatory prohibition.
14. In response, FC Rukh explained that it arranged loan transfer agreements for the player with FC Arka
Gdynia and Stade Lavallois Mayenne FC. The club stated that attempts were made to negotiate the
player's return, but he decided not to come back to Ukraine.
15. The club asserted that the player officially suspended the contract for the 2023/2024 season on 21
June, 2023, invoking FIFA RSTP Annex 7.
16. FC Rukh considered that the sign-up fee should be paid on a pro-rata basis, reflecting the period
during which the footballer performed duties under the contract.
17. The Respondent argued that such approach is supported by FIFA jurisprudence, for example, FIFA
DRC Decision taken on March 11 2005 in case 04-00144/hdh in which DRC had decided that the
player was entitled to receive sign-up fee according to actually worked period on pro rata basis.
18. The club argued that the force-majeure situation in Ukraine, arising from the Russian military
invasion, disrupted the regular execution of the contract by both parties. FC Rukh asserted that it
club did not generate income from the player during this period, noting in particular that he neither
participated any Rukh team's official match nor took part in any marketing/merchandizing Club's
event as the end of January and also most of February team spent at the training camp in Turkey.
19. FC Rukh acknowledged a debt to the player, as follows:
Description
Amount (UAH)
Salary for February 2022 (due)
5,232.50 UAH
Incentive money payment for February (due)
Amount (USD)
9,800.00 USD
pg. 5
REF. FPSD-12322
Sign-up fee for January and February 2022 (due)
Paid part of the sign-up fee (paid)
Total due
5,232.50 UAH
4,000.00 USD
-10,000.00 USD
3,800.00 USD
20. In his replica, the Claimant kept his initial arguments.
21. The player insisted on receiving the full amount of 9,800 USD as a monthly incentive payment.
22. The player acknowledged that he received 10,000 USD as part of the signing bonus, but the
remaining 26,000 USD for the first installment is still due.
23. In its duplica, the Respondent maintained the statements and requests made in a previous response
to the claim.
24. The Respondent explained that personal income tax (at a rate of 18%) and military duty (at a rate of
1.5 percent) are withheld by the employer from the employee's monthly income based on the valid
legislation of Ukraine.
25. The Respondent provided extracts from the Tax Code of Ukraine to support the stated regulations
regarding personal income tax and military duty.
26. Therefore, the club argued that player is entitled to receive a net monthly salary for February 2022
in the amount of 5,232.50 UAH.
27. The Respondent also addressed other payments according to the Agreement on incentive payments
to the Contract.
28. In particular, the club accepted that the player is entitled to receive a balance of 3,800 USD.
29. The club further rejected the payment of interest.
30. The club invited the player to return to the club and renew the contract at the end of the competitive
season or during the winter registration period.
31. In the opinion of the club, the Claimant’s argumentation constitutes an open disdain for the force
majeure martial law of the warring party.
pg. 6
REF. FPSD-12322
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
32. 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 19 October 2023 and submitted for decision
on 21 March 2024. 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.
33. 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 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 Senegalese player and a Ukrainian club.
34. 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 (October 2022 edition), and considering that
the present claim was lodged on 19 October 2023, the May 2023 edition edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
35. 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
36. 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
pg. 7
REF. FPSD-12322
37. The foregoing having been established, the Chamber moved to the substance of the matter, and
took note of the fact that the parties concluded an employment agreement valid as from 25
January 2022 until 30 June 2025.
38. Subsequently, the Chamber noted that the player lodged a claim for outstanding remuneraiton,
by means of which he requested the payment of the amounts quoted in point I. 11 above.
39. In this context, the Chamber acknowledged that it its task was to determine which of said claimed
amounts are outstanding.
40. First of all, the Chamber noted that the player requested UAH 6,500 net as his salary for the
month of February 2022, whereas the club acknowledged a debt of UAH 5,232.50 after noting
that the amount are gross, subject to a tax rate of 18% + 1.5%.
41. In this regard, the Chamber noted that, unlike argued by the player, the contract did not stipulate
that the salary is net. Indeed, the Chamber considered that the player’s reference to art. 4.2 of
the contract as an evidence of “net” appears to be incorrect, since this clause only mandates the
club to apply the local tax legislation.
42. Thus, in application of the principle of pacta sunt servanda, the Chamber established that the
amount of UAH 6,500 shall be paid by the Respondent to the Claimant, in the terms established
in the previous paragraph.
43. The Chamber subsequently examined the request related to the “incentive payment” agreed for
the month of February 2022.
44. In this Regard, the Chamber noted that the club acknowledged that the “incentive” of USD 9,800
net is due for the month of February 2022.
45. In relation to said payment, unlike the salary, the Chamber observed that said payment is clearly
stipulated as a net payment.
46. Thus, in application of the principle of pacta sunt servanda, the Chamber established that the
amount of USD 9,800 net shall be paid by the Respondent to the Claimant.
47. Moreover, the Chamber examined the player’s request for the payment of USD 26,000 net
concerning the first instalment of his signing bonus.
48. In relation to said payment, the Chamber was fully aware of the adverse circumstances
surrounding said payments, particularly due the invasion of Ukraine by Russia that began on 24
February 2022.
49. Nevertheless, the Chamber noted that, for this specific request, the first instalment of the signing
bonus was already due since 30 January 2022, i.e. before the beginning of the war.
50. Thus, also in application of the principle of pacta sunt servanda, the Chamber established that the
amount of USD 26,000 net shall be paid by the Respondent to the Claimant.
pg. 8
REF. FPSD-12322
51. As to the payment of default interest, the Chamber took note the Club’s argument, according to
which, as per specific legislation introduced in Ukraine following the outbreak of the war, no
international money transfers could be made.
52. In this respect, the Chamber noted that the player did left Ukraine shortly after the beginning of
the war, but emphasized that, nevertheless, the club could have still paid the player’s
remuneration to his player’s bank account in Ukraine.
53. Given the above, in line with the jurisprudence of the Football Tribunal, the Chamber decided to
award default interests at the rate of 5% p.a. over the outstanding amounts as from their due
dates.
ii. Compliance with monetary decisions
54. 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.
55. 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.
56. 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.
57. 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.
58. 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
59. 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.
pg. 9
REF. FPSD-12322
60. 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.
61. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any
of the parties.
pg. 10
REF. FPSD-12322
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Elhadji Pape Djibril DIAW, is partially accepted.
2.
The Respondent, FC Rukh Lviv, must pay to the Claimant the following amounts:
-
UAH 6,500 as outstanding salary of February 2022 plus 5% interest p.a. as from 1
March 2022 until the date of effective payment;
USD 9,800 net as incentive payment of February 2022 plus 5% interest p.a. as from 1
March 2022 until the date of effective payment;
USD 26,000 net as the rest of the first instalment of the sign-on fee plus 5% interest
p.a. as from 31 January 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
pg. 11
REF. FPSD-12322
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
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
pg. 12