Labour Disputes
Texto da decisão
REF FPSD-6910
Decision of the
Dispute Resolution Chamber
passed on 12 January 2023
regarding an employment-related dispute concerning
the player Yacouba Doumbia
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Iñigo Riestra (Mexico), member
Tomislav Kasalo (Croatia), member
CLAIMANT / COUNTER-RESPONDENT 1:
Yacouba Doumbia, Mali
Represented by Mr Slim Boulasnem
RESPONDENT / COUNTER-CLAIMANT:
JS Kabylie, Algeria
COUNTER-RESPONDENT 2:
Arabi SC, Kuwait
Page 2
REF FPSD-6910
I. Facts of the case
1.
On 10 August 2021, the Malian player Yacouba Doumbia (hereinafter: the Claimant), and
the Algerian club JS Kabylie (hereinafter: the Respondent) signed an employment contract
(hereinafter: the Contract) valid as from the date of signature until the end of the season
2024/2025 (i.e. 30 May 2025).
2.
In accordance with art. 4 of the Contract, the Respondent undertook to pay the Claimant
a gross monthly remuneration of DZD 774,300.
3.
By correspondence dated 4 July 2022, the Claimant put the Respondent in default of
payment of “eight monthly salaries”, setting a 7-day time limit in order to remedy the
default. Furthermore, in the same letter, the Claimant requested clarification regarding
his contractual situation, as he had not been given any information regarding the
beginning of the new season and he discovered that the Respondent had recruited
another foreign player.
4.
On 7 July 2022, the Respondent replied to the Claimant, denying that it was in default, and
stating that it was “not aware of [the Claimant’s] flight schedule”.
5.
On 8 July 2022, the Claimant once again put the Respondent in default of payment of
DZD 3,017,000, relating to deductions made to salaries over the course of the Contract.
The Claimant granted the Respondent a three-day deadline to remedy the alleged breach.
6.
On 13 July 2022, the Respondent sent the Claimant flight tickets for the following day to
return to Algeria, without any further information as to the requested payments.
7.
On the same day, the Claimant responded to said communication, outlining that he would
like to return to the Respondent, but that the latter had to first comply with its financial
obligations under the Contract.
8.
On the same day still, the Respondent reverted to the Claimant and summoned the latter
to Algeria via the scheduled flight in order to “clarify the situation”, and that, in any case,
a more detailed letter would follow later that day.
9.
On 14 July 2022, the Claimant sent a correspondence to the Respondent, requesting proof
of payment of the claimed amounts, otherwise refusing to take the scheduled flight. No
such confirmation followed and the Claimant did not travel to Algeria.
10. On 20 July 2022, the Respondent engaged a legal representative and sent the Claimant
the relevant power of attorney.
11. On 21 July 2022, the Claimant terminated the Contract.
Page 3
REF FPSD-6910
12. On 31 August 2022, the Claimant signed an employment contract (hereinafter: the New
Contract) with the Kuwaiti club Al Arabi (hereinafter: the New Club) valid as from the date
of signature until 30 June 2023.
13. In accordance with the New Contract, the New Club undertook to pay the Claimant a total
remuneration of USD 80,000
II. Proceedings before FIFA
14. On 1 August 2022, the Claimant filed the claim at hand before FIFA.
15. On 9 September 2022, the Respondent filed a counterclaim against the Claimant.
16. A brief summary of the position of the parties is detailed in continuation.
a. Position of the Claimant
17. According to the Claimant, the Respondent paid the salaries for August 2021, September
2021, October 2021, December 2021, January 2022, February 2022, March 2022 and April
2022 with unlawful reductions, and the salaries for November 2021, May 2022 and June
2022 not at all, resulting in a total unpaid amount of DZD 5,517,000.
18. Furthermore, the Claimant asserted that, despite having put the Respondent in default of
payment, the latter failed to comply with the obligations set out in the Contract, thereby
giving rise to just cause for the Claimant to terminate the Contract on 21 July 2022.
19. Therefore, the Claimant requested the following amounts:
-
DZD 5,517,000 as outstanding remuneration, with interest as from the relevant
due dates of the unpaid instalments;
-
DUD 27,100,500 as compensation for termination without just cause, with
interest as from 21 July 2022;
-
EUR 5,000 as legal costs.
b. Position of the Respondent
20. According to the Respondent, the Claimant terminated the Contract without just cause,
briefly explaining that the amounts stipulated under the Contract are specified as “gross”
which, in accordance with Algerian law and the relevant domestic regulations, may be
subject to reductions made by the employer (in this case, the Respondent).
Page 4
REF FPSD-6910
21. On account of the above, the Respondent argued, it was permitted to make deductions
to the Claimant’s salary, and acknowledged having withheld payment of DZD 3,017,000.
In this respect, the Respondent submitted a proof of payment in the amount of
DZD 3,000,000 addressed to the Algerian Professional Football League.
22. Furthermore, the Respondent outlined that the Claimant was invited to return to Algeria,
with training scheduled to resume on 1 July 2022 and special entry being organised via
the Ministry of Sports, but that the latter refused to take the flight which had been
organised without any justification. As a result, the Respondent argued that the Claimant
was in breach of contract.
c. Claimant’s reply to counterclaim
23. Despite being invited to do so, the Claimant submitted no further comments.
d. New Club’s reply to counterclaim
24. The FIFA administration invited the New Club to present its position to the counterclaim
as an intervening party to the claim, in accordance with art. 9 par. 4 of the Procedural
Rules Governing the Football Tribunal.
25. The New Club argued that it has no standing to be sued, as the Respondent’s counterclaim
was only addressed to the Claimant and “a simple letter from FIFA to a person or a club
is not sufficient to create the status of respondent”.
Page 5
REF FPSD-6910
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
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. In this respect, it
took note that the present matter was presented to FIFA on 1 August 2022 and submitted
for decision on 12 January 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.
2.
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
Malian player and an Algerian club.
3.
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 01 August 2022, the July
2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter
at hand as to the substance.
b. Burden of proof
4.
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
5.
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.
Page 6
REF FPSD-6910
i. Main legal discussion and considerations
6.
The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the lawfulness of certain
deductions made to the Claimant’s salary, as well as the existence of just cause for
terminating the Contract.
7.
In this context, the Chamber acknowledged that it its task was to determine whether or
not the deductions made by the Respondent were indeed justified, and subsequently
whether the Contract was terminated with or without just cause.
8.
To begin with, the Chamber recalled the Claimant’s argumentation that the Respondent
failed to pay three monthly salaries under the Contract entirely, whereas a number of
further payments were reduced without a valid reason, and that, as a result thereof, the
Claimant was entitled to refuse returning to the Respondent.
9.
On the other hand, the Chamber observed the line of argument submitted by the
Respondent that the deductions were justified, given that the figure specified in the
Contract was “gross”, and that, as a result, the Claimant’s decision not to return to Algeria
was a breach of his contractual obligations, thereby rendering the termination of the
Contract by the Claimant without just cause.
10. In view of the foregoing, the Chamber referred to art. 13 par. 5 of the Procedural Rules,
according to which a party that asserts a fact has the burden of proving its veracity, and
went on to analyse the documentation provided by the parties in support of their
allegations.
11. In this respect, the Chamber established that, as the Contract contained no provision
specifying how the Claimant’s tax deductions would occur or in what amount they would
be made, it looked to additional evidence supplied by the Respondent to determine
whether the deductions were indeed justified.
12. The Chamber noted that the Respondent provided a payment slip documenting a
payment of DZD 3,000,000 towards the Algerian Professional Football League. Equally,
however, the Chamber noted that said payment slip contained no reference to the
Claimant’s salaries or relevant tax deductions, nor was any evidence provided to
corroborate that the Algerian Professional Football League was the correct recipient of
these amounts, to the extent of discharging the Respondent of the Claimant’s tax liability.
13. Beyond said payment slip, the Chamber observed, the Respondent produced no further
evidence to justify the deductions.
Page 7
REF FPSD-6910
14. Therefore, the Chamber concluded that the deductions were made by the Respondent
unlawfully and that, having failed to pay the Claimant the sum which was stipulated
contractually, the former was in breach of the Contract.
15. Having established the above, the Chamber proceeded to consider the lawfulness of the
termination of the Contract by the Claimant. In this respect, it referred to the wording of
art. 14 par.1 of the Regulations, which stipulates that a contract may be terminated by
either party where there is just cause.
16. Firstly, the Chamber recalled that, as well as confirming the unlawfully made deductions
to the Claimant’s salaries, the Respondent did not challenge the alleged non-payment of
the entire salary instalments corresponding to the months of November 2021, May 2022
and June 2022, corresponding to a total outstanding amount of DZD 5,517,000.
17. In this regard, the Chamber considered that, despite the formal requirements of art. 14bis
of the Regulations not being met, in particular the Respondent being put in default of the
outstanding amounts and being granted a deadline of at least 15 days to remedy the
breach, the failure to pay an aggregate amount exceeding seven monthly salaries over
the course of the Contract constituted a substantial and consistent breach of the Contract
by the Respondent, warranting the termination of the Contract by the Claimant as an
ultima ratio measure.
18. Therefore, the Chamber concluded that the Contract had been terminated by the
Claimant with just cause.
ii. Consequences
19. 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.
20. The Chamber observed that the uncontested amount of outstanding remuneration at the
time of termination, coupled with the specific requests for relief of the Claimant, was
equivalent to DZD 5,517,000.
21. 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. DZD 5,517,000.
22. 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
Page 8
REF FPSD-6910
at the rate of 5% p.a. on the outstanding amounts as from the following dates until the
date of effective payment:
-
On the amount of DZD 96,900, 5% p.a. as from 1 December 2021 until the date of
effective payment;
on the amount of DZD 774,300, 5% p.a. as from 1 January 2022 until the date of
effective payment;
on the amount of DZD 774,300, 5% p.a. as from 1 February 2022 until the date of
effective payment;
on the amount of DZD 774,300, 5% p.a. as from 1 March 2022 until the date of
effective payment;
on the amount of DZD 774,300, 5% p.a. as from 1 April 2022 until the date of
effective payment;
on the amount of DZD 774,300, 5% p.a. as from 1 May 2022 until the date of
effective payment;
on the amount of DZD 774,300, 5% p.a. as from 1 June 2022 until the date of
effective payment;
on the amount of DZD 774,300, 5% p.a. as from 1 July 2022 until the date of
effective payment.
23. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent 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, 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.
24. 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.
25. As a consequence, the members of the Chamber 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
Chamber recalled that said provision provides for a non-exhaustive enumeration of
Page 9
REF FPSD-6910
criteria to be taken into consideration when calculating the amount of compensation
payable.
26. 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 DZD 27,100,500 (i.e. the residual value of the Contract, or
35 x DZD 774,300 for the period between July 2022 and May 2025) serves as the basis for
the determination of the amount of compensation for breach of contract.
27. In continuation, the Chamber 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 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.
28. Indeed, the player found employment with the New Club. In accordance with the New
Contract, the term of which entirely overlapped with the Contract at the basis of this
dispute, the Claimant was entitled to a total amount of USD 80,000, or approximately
DZD 11,120,000.
29. 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 at least 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
termination took place due to said reason i.e. overdue payables by the club, and therefore
decided that the player shall receive additional compensation.
30. Furthermore, the Chamber considered that the Respondent’s failure to inform the
Claimant of a return date in good time, causing the latter to miss out on the pre-season
with the rest of the squad, gave rise to egregious circumstances, thereby entitling the
Claimant to receive four monthly salaries as additional compensation, in accordance with
the above-mentioned provision.
31. Thus, the DRC decided to award the amount of additional compensation of
DZD 3,097,200, i.e. four times the monthly remuneration of the player.
32. 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 DZD 19,077,700 to the player (i.e. DZD 27,100,500 minus DZD 11,120,000 plus
Page 10
REF FPSD-6910
DZD 3,097,200), which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
33. Lastly, 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 former interest on said
compensation at the rate of 5% p.a. as of 1 August 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
34. 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.
35. 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.
36. 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.
37. 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.
38. 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
39. 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.
Page 11
REF FPSD-6910
40. 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.
41. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
Page 12
REF FPSD-6910
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent 1, Yacouba Doumbia, is partially
accepted.
2.
The Respondent / Counterclaimant, JS Kabylie, has to pay to the Claimant / CounterRespondent 1, the following amount(s):
- DZD 5,517,000 as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount of DZD 96,900 of as from 1 December 2021 until the date of
effective payment;
- 5% interest p.a. over the amount of DZD 774,300 of as from 1 January 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of DZD 774,300 of as from 1 February 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of DZD 774,300 of as from 1 March 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of DZD 774,300 of as from 1 April 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of DZD 774,300 of as from 1 May 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of DZD 774,300 of as from 1 June 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of DZD 774,300 of as from 1 July 2022 until the date of
effective payment.
- DZD 19,077,700 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 1 August 2022 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent 1 are rejected.
4.
The counterclaim of the Respondent / Counterclaimant is rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
6.
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.
Page 13
REF FPSD-6910
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.
7.
The consequences shall only be enforced at the request of the Claimant / CounterRespondent 1 in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on
the Status and Transfer of Players.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 14
REF FPSD-6910
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
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
Page 15