Labour Disputes
Texto da decisão
REF 20-00422
Decision of the
DRC Judge
passed via videoconference, on 15 July 2020,
regarding an employment-related dispute concerning the player Shadrach Kwesi Eghan
BY:
Johan v an Gaalen (South Africa), DRC Judge
CLAIMANT:
Shadrach Kwesi Eghan, Ghana
represented by Mr. Nasr El-din Azzam
RESPONDENT:
Al Zawra Sports Club, Iraq
Haga clic o pulse aquí para escribir texto.
Page 2 of 10
REF 20-00422
I. FACTS OF THE CASE
1.
On 26 January 2019, the Ghanaian / Dutch player Shadrach Kwesi Eghan (hereinafter: the Claimant
or the player) and the Iraqi club, Al Zawra (hereinafter: the Respondent or the club) signed two
documents, an employment contract (hereinafter: contract) valid from 26 January 2019 until 30 July
2019.
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly salary of USD
11,900 “at the end of every month”, whereby the total value of the contract is defined as USD
70,000.
3.
Furthermore, according to the contract, the Respondent undertook to “secure decent housing” for
the Claimant.
4.
According to information contained in the Transfer Matching System (TMS), the player was registered
with the Respondent on 29 January 2019.
5.
According the documentation on file, the Claimant was able to enter Iraq and the Respondent
announced the signing of the contract on its official media accounts.
6.
On 4 March 2020, the Claimant lodged a claim against the Respondent in front of FIFA, requesting
the following monies:
-
USD 70,000 corresponding to the total value of the contract;
USD 1,500 corresponding to three flight tickets;
USD 70,400 as additional compensation, corresponding to 6 monthly salaries;
USD 10,000 as contribution to the Claimant’s legal fees.
7.
In his claim, the player argued that although he participated in the training sessions of the club, he
never received any salary. Moreover, according to the player, he “subjected to abusive conduct.”
8.
According to the player, on an unspecified date, the Respondent contacted the alleged player’s agent
and concluded a termination agreement, which stated: “there are no financial rights due to the player
by the club”.
9.
The Claimant contested the validity of said termination agreement, since “it was not signed by him”
and “it indicated that the termination has been negotiated and signed by his agent.”
10. In spite of being requested to do so, the Respondent failed to submit a reply to the player’s claim.
11. The player informed the FIFA administration that he remained unemployed until 30 July 2019.
Page 3 of 10
REF 20-00422
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter also referred to as DRC judge)
analysed whether he was competent to deal with the case at hand. In this respect, it took note that
the present matter was submitted to FIFA on 4 March 2020 and submitted for decision on 15 July
2020. Taking into account the wording of art. 21 of the 2019 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 DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed
that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations
on the Status and Transfer of Players, the DRC judge is competent to deal with the matter at stake,
which concerns an employment–related dispute with an international dimension.
3.
In continuation, the DRC judge analysed which regulations should be applicable as to the substance
of the matter. In this respect, the DRC judge confirmed that in accordance with art. 26 par. 1 and 2
of the Regulations on the Status and Transfer of Players (June 2020 edition), and considering that
the claim was lodged on 4 March 2020, the March 2020 edition of the aforementioned regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been established, the DRC
judge entered into the substance of the matter. In this respect, the DRC judge started by
acknowledging all the above-mentioned facts as well as the arguments and the documentation
submitted by the parties. However, the DRC judge 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.
5.
Having said that, the DRC judge acknowledged that on 26 January 2019, the Claimant and the
Respondent signed an employment agreement valid as from 26 January 2019 until 30 July 2019.
Based on said contract, the Respondent undertook to pay to the Claimant, inter alia, a monthly
salary of USD 11,900, to be paid at the end of every month, i.e. the total amount of USD 70,000 as
well as “secure decent housing”.
6.
What is more, the DRC judge noted that the Claimant explained that – after entering Iraq and having
participated in the Respondent’s training sessions – after three weeks, on or around 16 February
2019, he received a mutual termination agreement, signed by the Respondent and his agent. BY
means of this settlement agreement, the Claimant would have agreed with the termination of his
contract and he would have waived his financial rights as per the contract.
7.
The Claimant maintained in this respect that he had never signed said termination agreement, nor
that he gave permission to his agent to sign said document, and further explained that he was
threatened by the Respondent, as well as by armed soldiers.
Page 4 of 10
REF 20-00422
8.
Moreover, the Claimant explains that for the abovementioned reasons, the Respondent was
apparently not interested in his services anymore, and he wished to receive compensation for breach
of contract.
9.
The Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of
having been invited to do so. In this way, the DRC judge considered that the Respondent renounced
its right of defence.
10. Furthermore, as a consequence of the aforementioned consideration, the DRC judge concurred that
in accordance with art. 9 par. 3 of the Procedural Rules it shall take a decision upon the basis of the
documents already on file, in other words, upon the statements and documents presented by the
Claimant.
11. In view of the foregoing, The DRC judge highlighted that the underlying issue in this dispute was to
determine as to when the contract was terminated and whether said termination was made with or
without just cause by one of the parties. The DRC judge also underlined that, subsequently, if he
would found that the contract was terminated without just cause, it would be necessary to
determine the consequences for the party that was responsible for the early termination of the
contractual relation.
12. The DRC judge, first of all, wished to highlight that from the information on file, as well as the
absence of a reply of the Respondent, the chronology of the matter at hand is not unambiguously
clear. However, according to the Claimant, the collaboration between the parties came to an end
three weeks after the starting date of the contract, i.e. on 16 February 2020, when a termination
agreement – signed by the Respondent and the Claimant’s agent - was handed over to the Claimant
and he was allegedly threatened by the Respondent.
13. Turning to the content of the file, the DRC judge noted that the Claimant explicitly denied that he
singed said termination agreement, as the document only bears the signatures of the Respondent
and the agent of the Claimant. What is more, the DRC judge also noted that no power of attorney
was on file, on the basis of which the agent of the Claimant would have been entitled to conclude
said termination agreement on behalf of the Claimant. Therefore, the DRC judge deemed that, given
the explicit denial of the Claimant as well as the lack of evidence that the termination agreement
was signed on behalf or with the Claimant being aware of it, the effects of said termination
agreement cannot be upheld against the Claimant.
14. Furthermore, as a consequence of the aforementioned considerations and taking into account the
documentation presented by the parties to the dispute, the DRC judge established that the
Respondent had effectively terminated the contract between the parties on 16 February 2019, as it
was allegedly no longer interested in the services of the Claimant.
15. Furthermore, the DRC judge deemed it vital to outline that it remained uncontested that the
Respondent had not fulfilled its financial obligations set forth in the employment contract signed
between the parties and that it failed to pay to the Claimant any of the agreed salaries.
Page 5 of 10
REF 20-00422
16. On account of all the abovementioned considerations, the DRC judge decided that the contractual
relationship between the parties had finished on 16 February 2019, that is, three weeks after the
start of the contract. In view of the uncontested allegations of the Claimant, the DRC judge decided
that the Respondent is to be held liable for the early termination of the employment contact without
just cause.
17. Bearing in mind the previous considerations, the DRC judge went on to deal with the consequences
of the early termination of the employment contract without just cause by the Respondent.
18. First of all, the DRC judge concurred that the Respondent must fulfil its obligations as per
employment contract up until the date of termination of the contract in accordance with the general
legal principle of “pacta sunt servanda”.
19. However, taking into account that the Claimant claims to have only stayed for 3 weeks at the
Respondent’s club, i.e. until 16 February 2019 and that by the time the collaboration between the
parties allegedly stopped, no salary payments had fallen due yet, the DRC judge decided to not
award any outstanding remuneration to the Claimant.
20. In continuation, the DRC judge decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of
contract in addition to any outstanding remuneration on the basis of the relevant employment
contract.
21. In this context, the DRC judge outlined that, in accordance with said provision, 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 Claimant 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.
22. In application of the relevant provision, the DRC judge held that it first of all had to clarify whether
the pertinent employment contract contained any clause, by means of which the parties had
beforehand agreed upon a compensation payable by the contractual parties in the event of breach
of contract. In this regard, the DRC judge established that no such compensation clause was
included in the employment contract at the basis of the matter at stake.
23. Subsequently, and in order to evaluate the compensation to be paid by the Respondent the DRC
judge took into account the remuneration due to the Claimant in accordance with the employment
contract as well as the time remaining on the same contract, along with the professional situation
of the Claimant after the early termination occurred. In this respect, the DRC judge pointed out that
at the time of the termination of the employment contract, i.e. on 16 February 2019, the contract
would run for another 5.5 months, that is, until 30 July 2019 and that no salary had fallen due until
Page 6 of 10
REF 20-00422
16 February 2019. Consequently, taking into account the financial terms of the contract, the DRC
judge concluded that the remaining value of the contract as from its early termination by the
Respondent until the regular expiry of the contract amounts to USD 70,000 and that such amount
shall serve as the basis for the final determination of the amount of compensation for breach of
contract.
24. In continuation, the DRC judge remarked that following the early termination of the employment
contract at the basis of the present dispute, the Claimant was not able to find new employment. As
a result, no further amounts will be deducted from the compensation the Claimant would be entitled
to.
25. In view of all of the above, the DRC judge decided that the Respondent must pay the amount of
USD 70,000 to the Claimant as compensation for breach of contract without just case, which is
considered by the DRC judge to be a reasonable and justified amount as compensation.
26. In addition, taking into account the Claimant’s claim and the longstanding jurisprudence of the
Chamber in this respect, it was decided to award the Claimant interest of 5% p.a. as of 4 March
2020 on the compensation payable.
27. The request for additional compensation based on the specificity of sport was rejected, since the
DRC judge did not find any particular reason for such adjustment. Furthermore, reference was also
made to art. 17 par 1. lit ii of the Regulations, which provides for additional compensation only in
case the Claimant was able to mitigate his damage and the early termination of the contract being
due to overdue payables. None of these cumulative conditions are met in the matter at hand.
28. What is more, with respect to the claimed flight tickets, the DRC judge decided not to upheld this
part of the Claimant’s claim, as the Claimant failed to submit any documentary evidence that he
effectively incurred said costs.
29. Additionally, as regards the claimed legal expenses, the DRC judge referred to art. 18 par. 4 of the
Procedural Rules as well as to its long-standing and well-established jurisprudence, in accordance
with which no procedural compensation shall be awarded in proceedings in front of the Dispute
Resolution Chamber. Consequently, the DRC judge decided to reject the Claimant’s request relating
to legal expenses.
30. In conclusion, the DRC decided that the Respondent is liable to pay the total amount of USD 70,000
to the Claimant as compensation for breach of contract without just cause.
31. The DRC judge concluded his deliberations in the present matter stipulating that any further claim
lodged by the Claimant is rejected. In conclusion, the Claimant’s claim is partially accepted.
32. Furthermore, taking into account the consideration under number II./3. above, the DRC judge
referred to par. 1 and 2 of art. 24bis 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
Page 7 of 10
REF 20-00422
concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in
due time.
33. 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.
34. 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.
35. Finally, the DRC judge 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.
Page 8 of 10
REF 20-00422
III. DECISION OF THE DRC JUDGE
1.
The claim of the Claimant, Shadrach Kwesi Eghan, is partially accepted.
2.
The Respondent, Al Zawra Sports Club, has to pay to the Claimant, the following amount:
- USD 70,000 as compensation for breach of contract plus 5% interest p.a. as from 4 March 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.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 9 of 10
REF 20-00422
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
Page 10 of 10