Labour Disputes
Texto da decisão
REF. FPSD-9373
Decision of the
Dispute Resolution Chamber
passed on 8 June 2023
regarding an employment-related dispute concerning
the player Allan Eleouet
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairperson
Khalid Awad Althebity (Saudi Arabia), Member
Alexandra Gomez Bruinewoud (Uruguay & the Netherlands), Member
CLAIMANT:
Allan Eleouet, Switzerland
Represented by SPFBiH
RESPONDENT:
FK Tuzla City, Bosnia and Herzegovina
Represented by Drazen Nikolic
pg. 2
REF. FPSD-9373
I. Facts of the case
1.
The relevant parties to this dispute are the Swiss player, Allan Eleouet (hereinafter: the
player or the Claimant); and the Bosnian club, FK Tuzla City (hereinafter: the club or the
Respondent).
The contractual basis
2.
On 18 June 2022, the club and a company named “World Sports Management Agency for Allan
Eleouet” signed a document named “Ugovor” (hereinafter: the Preliminary Agreement), with
the following contents:
“Player:
1. Contract length – 3 years,
2. Bonus for signing the contract – 30,000 Euros net (…);
3. Player’s salary – 48,000 Euros net (…) for one year;
4. Meals 2,000 Euros net (…) per year;
5 Apartment,
6. Passage to the group stage of the Europa League (if the standard player is 70% of
matches, qualifying matches) – 25,000 Euros,
7. Top scorer or assistant of the league 5,000 Euros,
8. Champion of Bosnia and Herzegovina -10,000 Euros,
9. Qualification in Europe – 5,000 Euros,
10. Team premium,
11. Two plane tickets on the route Suisse – BiH, two directions,
Agency:
12. Player transfer -20% to the Agency,
13. Commission for the Agency 10,000 Euros”.
3.
The Preliminary Agreement was signed by Mr D. Ishitok on behalf of “World sports
Management Agency for Allan Eleouet” and by Mr Alic Nijaz on behalf of the club.
4.
On 1 July 2022, the player and the club, represented by Mr Munib Subasic, concluded an
employment contract valid as from 1 July 2022 until 30 June 2025 (i.e., 3 years) (hereinafter:
the Employment Contract).
5.
As per clause 4 par. 1 of the Employment Contract, the player was entitled to a monthly
salary of BAM 1,000 net.
6.
Clause 15 par. 2 of the Employment Contract stipulates that: “The signing of this Contract
excludes all previous agreements, oral or written, reached between the Contracting Parties
regarding the subject of this Contract. This Contract does not contain any written or oral
additions at the time of signing”.
pg. 3
REF. FPSD-9373
7.
Also on 1 July 2022, the player and a company named “Heez transport department no. 1”
(hereinafter: Heez Transport), represented by Mr Azmir Husic, signed a document titled
“Work Contract” (as per the translation provided by the club) valid as from 1 July 2022 until
31 December 2022 (hereinafter: the Work Contract).
8.
The player’s tasks as per the Work Contract are, quoted verbatim:
“- Creation of advertisements for the promotion of the Company "Heez transport" doo
Tuzla
- Conduct field work depending on the needs of the Company, and this can be manifested
in distribution of promotional material in public places or trade markets, presentations
to the groups or individuals
- To be well-informed about the Company's products and services
- To be communicative and approachable to customers
- If necessary, be available to the Client
- Performs other types of services related to the promotion of the Company”.
9.
As per clause 4 of the Work Contract, the player was entitled to receive “compensation for
the work performed in the net amount of EUR 30,000.00 (thirty thousand euros) in KM
equivalent”.
The correspondence exchange between the parties
10. According to the player:
•
on 4 January 2023, he put the club in default and requested payment of his salaries
“from the start of the employment relationship” (i.e., from July until December 2022,
totalling EUR 21,000), within the next 15 days; and
•
on 21 January 2023, he unilaterally terminated the employment relationship with
the club with immediate effect, due to the non-payment of the following
remuneration:
o Remaining salary for the month of July in the amount of EUR 3,500;
o Remaining salary for the month of August in the amount of EUR 3,500;
o Remaining salary for the month of October in the amount of EUR 3,500;
o Remaining salary for the month of November in the amount of EUR 3,500;
o Remaining salary for the month of December in the amount of EUR 3,500;
o Flight tickets reimbursement; and
o EUR 1,000 food allowance.
11. The club disputes the receipt of the abovementioned correspondences.
pg. 4
REF. FPSD-9373
12. On 7 February 2023, the club sent the player a letter, in which it states that “Based on the
agreement with your representative, on January 19, 2023, we set a proposal for mutual
termination of the contract. Considering that we have not received any suggestions of
corrections from you, please sign the agreement of provide corrections so that we can proceed
with the further procedure”. A copy of an unsigned termination agreement dated 19 January
2023 was enclosed to such letter, and states inter alia that: “The club undertakes to settle
financial obligations and obligations from contributions arising from the agreement on work
ending with the day of signing the agreement”.
13. On 22 February 2023, the club sent the player another letter, stating that he violated his
contractual obligations by not attending training and the selection for the senior
competitive season. It further claimed the player “tried to secure a certificate based on
‘unilateral termination of the contract’” and advises him to find an agreement with the club,
failing which the club would claim against him for breach of contract.
The new employment relationship of the player
14. In parallel and by contract dated 10 February 2022, the player entered into a new
employment relationship with the Swiss club, Etoile Carouge FC valid as from 3 February
2023 until 30 June 2023. Accordingly, he is entitled to a total remuneration of CHF 10,000.
15. According to the information available in the Transfer Matching System (TMS):
•
On 6 and 14 February 2023, the Swiss Football Association (SFV) requested the
International Transfer Certificate (ITC) of the player;
•
On 14 February 2023, the Bosnia and Herzegovina Football Federation (FFBH)
rejected the ITC request and stated that “There has been no mutual agreement
regarding early termination of the employment contract between the former club and
the professional player”;
•
On 17 February 2023, the Single Judge of the FIFA Players’ Status Chamber passed
a decision and authorized the registration of the player with SFV. Such decision was
“without prejudice to any possible decision from the FIFA Dispute Resolution Chamber
(DRC) and/or the competent decision-making body on the substance of the potential or
existing contractual dispute between the player and his former club (as well as his new
club)”; and
•
On 17 February 2023, the player was registered with Etoile Carouge FC.
pg. 5
REF. FPSD-9373
II. Proceedings before FIFA
16. On 23 February 2023, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Claim of the player
17. In his claim, the player explained that he signed the Employment Contract with the club for
a monthly salary of BAM 1,000, as well as the Preliminary Agreement and the Work Contract
according to which his remuneration was supplemented. Thus, he understands his
monthly salary amounted to EUR 4,511 plus EUR 166 for meals.
18. Yet, the player claimed that from the beginning of the employment relationship, the club
failed to pay his full remuneration. From July 2022 up until the date of termination, he only
received (i) BAM 58,835 (i.e., EUR 29,910 as per the player) as signing bonus paid on 12
September 2022; and (ii) BAM 5,060.43 (i.e., EUR 2,587, as per the player) as monthly
remuneration. Furthermore, the default was not cured by the club within the deadline
granted in his default notice.
19. The player added that, on 13 January 2023, the club signed a new player, Mr Mizrad
Mahnovic, who was assigned his shirt number. Additionally, the player submitted that the
club failed to invite him for the winter preparation and proposed the mutual termination
of their contractual relationship.
20. Not having received a reply or any payments within the deadline granted in his default
notice, the player pointed out that he terminated the Employment Contract unilaterally on
21 January 2023 with just cause.
21. The player argued that the following amounts remain outstanding up until today:
“Part of the monthly salary due in BAM
▪ BAM 564,57 as arrear for the part of the salary due in BAM under the contract for
the month of July 2022.
▪ BAM 75 as arrear for the part of the salary due in BAM under the contract for the
month of August 2022.
▪ BAM 75 as arrear for the part of the salary due in BAM under the contract for the
month of September 2022.
▪ BAM 75 as arrear for the part of the salary due in BAM under the contract for the
month of October 2022.
▪ BAM 75 as arrear for the part of the salary due in BAM under the contract for the
month of November 2022.
▪ BAM 75 as arrear for the part of the salary due in BAM under the contract for the
month of December 2022. 3 Ibid. Para. 65. 5
▪ BAM 1000 as arrear for the part of the salary due in BAM under the contract for the
pg. 6
REF. FPSD-9373
month of January 2023.
▪ Total: BAM 1.939,57
Part of the monthly salary due in EUR
▪ EUR 4000 + EUR 166 as arrear for the part of the salary due in EUR under the
contract for the month of July 2022.
▪ EUR 4000 + EUR 166 as arrear for the part of the salary due in EUR under the
contract for the month of August 2022.
▪ EUR 4000 + EUR 166 as arrear for the part of the salary due in EUR under the
contract for the month of September 2022.
▪ EUR 4000 + EUR 166 as arrear for the part of the salary due in EUR under the
contract for the month of October 2022.
▪ EUR 4000 + EUR 166 as arrear for the part of the salary due in EUR under the
contract for the month of November 2022.
▪ EUR 4000 + EUR 166 as arrear for the part of the salary due in EUR under the
contract for the month of December 2022.
▪ EUR 4000 + EUR 166 as arrear for the part of the salary due in EUR under the
contract for the month of January 2023.
▪ Total: EUR 28 000 + EUR 1 162
Flight Tickets
▪ EUR 261,21”.
22. He also claimed to be entitled to receive compensation corresponding to the residual value
of the Employment Contract and the supplementary contracts, calculated as follows:
“Season 22/23
▪ BAM 5000 (5 x 1000) for the salary in BAM
▪ EUR 20 000 (5 x 4000) + EUR 830 (5 x 166) for the salary and meal allowance in EUR
Season 23/24
▪ BAM 12 000 (12 x 1000) for the salary in BAM
▪ EUR 48 000 and EUR 2 000 for the salary and meal allowance in EUR
Season 24/25
▪ BAM 12 000 (12 x 1000) for the salary in BAM
▪ EUR 48 000 and EUR 2 000 for the salary and meal allowance in EUR”.
23. In case he found a new contract and the compensation was mitigated, he requested
additional compensation corresponding to 6 monthly salaries, due to egregious
circumstances.
pg. 7
REF. FPSD-9373
24. In conclusion, the player requested the FIFA to “determine that he terminated the
employment relationship with the Club with just cause on 21 January 2023 - and to order the
Club to pay the Player the following amounts:
▪ Overdue payables, plus 5% interest p.a. as from the relevant payment dates until the
date of effective payment, specified as follows (cf. IV):
▪ BAM 1.939,57 for the part of the monthly salaries to be paid in BAM
▪ EUR 28 000 + EUR 1 162 for the part of the monthly salaries to be paid in EUR
▪ EUR 261,21 for the flight ticket
▪ BAM 29 000 + EUR 120 000 as the amount due as compensation for breach of contract
+ 5% interest as from 21 January 2023 until the date of effective payment.
▪ The value of four return flight tickets (return) for the route Switzerland – Bosnia and
Herzegovina + 5% interest as from 21 January 2023 until the date of effective payment to
be calculated by FIFA Travel.”
b. Reply of the club
25. In its reply, the club entirely rejected the player’s claim. In particular, the club denied having
signed any annex complementing the player’s salary and points out no such document was
presented by the player. The Preliminary Agreement of 18 June 2022, named “Contract”,
was allegedly concluded with World Sports Management Agency, not with the player. The
club, however, denied having signed such document and claims not knowing Mr Alic Nijaz,
who signed such contract on its behalf. In this respect, the club indicated that “(…) the Club’s
authorized persons for representation and proxy are: 1. Almir Husić, president of the club; 2.
Sabahudin Vugdalić, director of the club and 3. Munib Subašić, president of the Assembly”
(emphasis added).
26. It also pointed out that the document of 18 June 2022 does not contain the stamp of the
club. In addition, no power of attorney issued by the player authorising World Sports
Management Agency to act on his behalf was provided. Thus, the club alleged that the
Preliminary Agreement shall not be taken into account and the player’s salary amounts to
BAM 1,000 only.
27. The club further states that “(…) the Player concluded with one of the sponsors and companies
based in BIH, “HEEZ Transport” Ltd Branch “Heez Construction” (in BIH: Heez Gradnja), the work
contract for marketing services and promotions of the company, which contract determinates
the compensation in the net amount of 30.000,00 EUR in BAM currency. The Heez ltd paid to the
Player the amount of 58.500,00 BAM (…), on 12 September 2022, which Player now stating as
alleged payment by the Club, which simply is not true (Enclosure R4 and R5 by the Respondent).
Therefore, the payment to the Claimant on 12 September 2022, in amount of 58.500,00 BAM,
pg. 8
REF. FPSD-9373
has been made by the third party, Heez Ltd Company, in accordance with the contract between
the Claimant and that third party”.
28. In view of the foregoing, the club stated having complied with all its financial obligations
towards the player as per the Employment Contract, hence the termination by the player
took place without just cause.
29. The club admitted having offered the player the termination of their employment
relationship on 19 January 2023, due to the fact their cooperation was not going well. The
player however did not react to the proposal and the contract remained valid and binding.
Consequently, the request for the issuance of the player’s ITC by SFV was rejected, as the
club and the player were allegedly still contractually bound.
30. On the other hand, the club denied having ever received the player’s default and
termination notices and disputes their authenticity. It points out that no evidence of
dispatch or receipt was provided by the player and the letters do not contain “any email
address of the sender or dates of sending”. It filed comments from a technology expert to this
extent.
31. Based on the foregoing, the club concluded that the player terminated the contract without
just cause and requested the Dispute Resolution Chamber (DRC)to entirely reject his claim.
No counterclaim was filed by the club against the player.
c. Rejoinder of the player
32. In his rejoinder, the player rejected the club’s argumentation that the Preliminary
Agreement should be disregarded and that the Work Contract, concluded with one of the
club’s sponsors, is not football-related.
33. In particular, he pointed out that it was not logic that he would receive a salary of BAM
1,000 only (i.e., EUR 255) from the club and a sign-on fee of EUR 30,000 from one of the
club’s sponsors for a period of 6 months. He claimed that “It is a common legal construction
that a club’s sponsor cover part of a player’s remuneration under a groundless marketing and/or
image right agreement while in fact the amount paid corresponds to the player’s remuneration
in exchange of his football services. In such legal construct, the marketing and/or image right
agreement is an addendum or a supplementary agreement to the employment contract to be
regarded as to be part of the actual employment relationship. In the present case, and as stated
by the Club itself, the company Heez Transport is one of the main Club’s sponsors, owned by the
Club’s President, and the amount paid corresponds exactly to the signing on fee (i.e. EUR 30 000)
to be paid by the Club under art. 2 of the Annex to the Employment Contract. (Enclosures 1 & 2).
This marketing agreement was thus simply a way for the Club to execute part of the
commitments made in the Annex”. He further added that the contract with Heez Transport
was signed by one of the duly authorised representatives of the club, as the latter itself
indicated in its reply to the claim.
pg. 9
REF. FPSD-9373
34. He also argued that the payment order dated 12 September 2022, allegedly issued by a
transport company, was in possession of the club and was provided by the latter in its
reply, “which confirms that the marketing agreement is part of the employment contract”.
35. As to the Preliminary Agreement, he alleged that the latter clearly refers to the club as the
counterparty and that the player and his agent could believe in good faith that the signatory
was duly authorised to act on behalf of the club. He filed additional documentation in
support of his argumentation.
36. Finally, the player deemed that the club’s allegation that it did not receive the default and
termination notices, and that the letters provided to FIFA were not authentic, was
unsubstantiated. He pointed out that the letters were sent to the club’s email indicated on
its website, (i.e., [email protected]). Likewise, he is of the opinion that the club was in any
case well-aware of the existence of outstanding salaries towards the player, as the parties
were in constant contact via text messages.
37. Finally, the player insisted on his original request for relief.
d. Final comments of the club
38. In its final comments, the club insisted that the player’s claim is unfounded and should be
therefore rejected. It pointed out that the player’s salary of BAM 1,000 corresponds to EUR
510,18 and not EUR 225, as indicated by the player, and covers more than the player’s
monthly expenses.
39. The club reiterated that the Work Contract, stipulating the payment of EUR 30,000 to the
player, was not concluded with the club, but with one of its sponsors. Thus, it should be
disregarded in the context of the present claim. Furthermore, the club claimed that it is “(…)
not true that this is common legal construction that a club’s sponsor cover part of a player’s
remuneration under a groundless marketing and/or image right agreement, because, firstly the
Club did not participate or signed any kind of marketing and image right agreement with the
Player, and secondly nor this particular work contract has been signed in benefit of the club”.
40. The club also insisted that the Preliminary Agreement is not valid, as it was concluded with
an agency and not signed by an authorised representative of the club. It also pointed out
that the representation agreements provided by the player in his replica did not exist or
were not presented earlier.
41. The club also highlighted that it never received the default and termination notifications of
the player, and pointed out that the latter could not provide a copy of the emails via which
these letters were allegedly sent, while the club presented a specialist report confirming
such emails were never received.
pg. 10
REF. FPSD-9373
42. Consequently, the club reiterated that the parties only concluded one valid contract: the
Employment Contract with the monthly salary of BAM 1,000, which was duly paid by the
club.
43. In the club’s view, the player’s claim should thus be rejected as completely unfounded.
III. Considerations of the Dispute Resolution Chamber
a. Jurisdiction of the Football Tribunal
44. 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 23 February 2023 and
submitted for decision on 8 June 2023. Taking into account the wording of art. 34 of the
March 2023 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.
45. 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 Regulations on the Status and Transfer of Players (RSTP) (May 2023 edition), the DRC
is in principle competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Swiss player and a Bosnian club.
46. At this point, the DRC acknowledged that the claim at hand is based on a constellation of
contracts, namely: (i) the Preliminary Agreement signed on 18 June 2022; (ii) the
Employment Contract signed on 1 July 2022; and (iii) the Work Contract also signed on 1
July 2022.
47. In parallel, the Chamber also recalled that, in principle, FIFA is not competent to decide on
agreements in which the subject-matter is civil or commercial (i.e., the license of image
rights), as those are not employment-related agreements. However, in line with the
Football Tribunal’s longstanding jurisprudence, such conclusion might be different if
specific elements of the separate agreement suggest that it was in fact meant to be part of
the actual employment relationship. Therefore, commercial agreements shall be assessed
on a case-by-case basis, considering the particularities and specific circumstances of each
individual dispute (cf. Commentary on the RSTP, Edition 2021 – page 364-5).
48. While considering the above, the Chamber was firm to determine that both the Preliminary
Agreement and the Employment Contract are clearly employment-related, because of their
self-evident conduct which pertain to the activities of the player as a footballer, employed
unequivocally by the club. Therefore, the Chamber confirmed that both fall within the
jurisdiction ratione materiae of the Football Tribunal (cf. art. 22, par. 1, lit. b) of the FIFA
pg. 11
REF. FPSD-9373
RSTP). As such, their validity and effect should be assessed as to the substance of the
matter.
49. Notwithstanding the above, the Chamber considered that the nature of the Work Contract
concluded between the player and Heez Transport was disputed, hence it required further
analysis. In particular, the DRC was observant of the club’s argumentation according to
which such contract was related to services alien to their employment relationship entailing
that it should not be taken into consideration by the Chamber.
50. On this note, the DRC went on analysing the wording of the Work Contract and the
supporting documentation filed by the player and found it remarkable that:
•
The Work Contract is indeed concluded between the player and a third party, i.e., Heez
Transport;
•
Heez Transport is represented therein by its president, Mr Azmir Husic;
•
The club indicates that Mr Almir Husic is the club’s president and one of the three
individuals authorized to conclude contracts on its behalf;
•
The difference in the spelling of Mr Husic’s first name appears to be a typo, and the
club did not specifically allege that they were different persons;
•
The player provided enough evidence that Heez Transport is a sponsor of the club,
something which was also not challenged by the club;
•
The club claims that the player was a professional player and earned double the
minimum salary for his services, which further corroborates that the Work Contract
also included part of his remuneration; and
•
There is no evidence on file capable of demonstrating that the player was providing
any type of service to Heez Transport, let alone that such services were not linked to
his role as football player employed by the club.
51. In light of the foregoing, the DRC was convinced that the Work Contract was in fact part of
the player’s employment relationship with the club. The Chamber was furthermore
comforted with this conclusion by considering that the Work Contract contains the most
significant part of the player’s remuneration, hence could be logically considered as a
component of his salary as a professional football player. In the DRC’s view, had that not
been case (i.e., the services rendered by the player to Heez Transport were not connected
to the employment relationship with the club), the latter should have provided any type of
evidence corroborating that the player was primarily rendering professional services to
Heez Transport, and that the footballing activities were merely secondary – which could
not be found on the case file.
pg. 12
REF. FPSD-9373
52. Once again and as opposed to the club’s position, the DRC also recalled that its
jurisprudence and the one from the Court of Arbitration for Sport (CAS) are solid to
establish that the fact that a company is included as a party to the relevant contract does
not prevent FIFA to enter into the merits of the case (cf. Commentary on the RSTP, Edition
2021 – page 364-5). This is even clearer when considering that, in the case at hand, the club
and Heez Transport are deeply and publicly connected, suggesting that the contractual setup between them was probably connected to tax / financial arrangements, yet within the
boundaries of their employment relationship.
53. Taking all the above into consideration, the DRC was not persuaded by the club’s position
that the Work Contract has a civil / commercial nature. As such, it could not be considered
as a separate agreement, but rather as an accessory/additional agreement to the
Employment Contract.
54. In conclusion, the DRC decided that it is competent to hear the dispute at stake in its
entirety.
b. Applicable legal framework
55. 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 (May 2023 edition), and considering
that the present claim was lodged on 23 February 2023, the October 2022 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
c. Burden of proof
56. 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.
d. Merits of the dispute
57. 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
pg. 13
REF. FPSD-9373
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
58. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that it pertains to a claim for breach of contract lodged
by a player against a club on the basis of multiple contracts concluded between them
and/or alleged representatives.
59. Furthermore, the Chamber was also observant that: (i) the player terminated the
employment relationship with the club on 21 January 2023, claiming to have just cause due
to overdue payables (cf. art. 14bis of the Regulations); however (ii) the club disputed the
justice of such termination and alleged that the requirements set out in the Regulations
were not met.
60. In this context, the Chamber acknowledged that its task was to determine the following:
•
Which contract(s) are valid and binding to the parties and shall be considered for
the purposes of the case at hand?
•
Was the employment relationship terminated with just cause by the player?
•
What are the consequences that follow?
61. The DRC moved then to the analysis of each topic in turn.
(A)
Which contract(s) are valid and binding to the parties and shall be considered
for the purposes of the case at hand?
62. As a departure point, the DRC recalled that on one side, the player claims the parties
concluded 3 valid contracts, namely: a) one on 18 June 2022, represented by his agent (i.e.,
the Preliminary Agreement), b) one on 1 July 2022 with the club for a monthly salary of BAM
1,000 (i.e., the Employment Contract); and c) one on 1 July 2022 with Heez Transport, one
of the club’s sponsors, for the payment of EUR 30,000 (i.e., the Work Contract). On the other
pg. 14
REF. FPSD-9373
side, the DRC was observant that the club deems the only contract binding the parties is
the Employment Contract.
63. Consequently, the DRC deemed that it needed to establish which were the contracts at the
basis of the parties’ employment relationship.
64. In doing so, the Chamber firstly highlighted that the authenticity and validity of the
Employment Contract is not only uncontested but also acknowledged by both parties.
Therefore, the DRC stressed that such contract is valid and binding to the parties, as well
as shall be taken into consideration for the analysis of the dispute.
65. Secondly, the DRC also recalled its conclusion, while analysing its jurisdiction on the matter,
that the Work Contract was also an integrant part of the parties’ relationship. As such, the
Chamber established that the contractual obligations – and, especially, the financial duties
– undertaken by the company were also imputable to the club. Thus, the Work Contract is
also relevant for the analysis at hand.
66. Thirdly and lastly, the Chamber turned its attention to the Preliminary Agreement
concluded on 18 June 2022, between the alleged representatives of the parties.
67. In this respect, the DRC took due consideration of the myriad of evidence and controverted
allegations submitted by both the player and the club in support of their positions. In
contrast, the Chamber found it decisive that:
•
The Preliminary Agreement was signed on 18 June 2022;
•
Subsequently, the parties unequivocally entered into the Employment Contract and
the Work Contract;
•
Clause 15.2 of the Employment Contract expressly read that: “The signing of this
Contract excludes all previous agreements, oral or written, reached between the
Contracting Parties regarding the subject of this Contract. This Contract does not contain
any written or oral additions at the time of signing”; and
•
No additional remark or reservation of rights was included in either the Employment
Contract nor the Work Contract concerning the validity and/or subsistence of the
Preliminary Agreement.
68. Therefore, the Chamber established that the discussion between the parties as to the
powers of representation for the signature of the Preliminary Agreement is completely
immaterial to the case, insofar as – in any event – such contract was superseded by the
Employment Contract concluded at a later stage. The DRC wished to remark, at this point,
that if the parties (and mostly the player) intended to safeguard their rights concerning
pg. 15
REF. FPSD-9373
previous arrangement between the parties, they should have done so in writing – which
was not the case.
69. Consequently, the DRC decided that the Preliminary Agreement ceased to produce effects
on 1 July 2022, namely the date when the Employment Contract was signed by the parties
and set out that it constituted the entire agreement between them. It followed, in the
Chamber’s opinion, that the Preliminary Agreement should not be taken into consideration
for the assessment of the just cause and consequences of the termination by the player.
(B)
Was the employment relationship terminated with just cause by the player?
70. Having established the above, the DRC moved to the issue of the just cause. For the
analysis, it referred solely to the contracts which were considered as the basis of the
parties’ employment relationship (i.e., the Employment Contract and the Work Contract).
71. With this in mind, the DRC observed that the player claimed his remuneration was not paid
in full. He also claimed to have put the club in default of payment on 4 January 2023, for
the non-payment of his salaries from July to December 2022, granting it 15 days to remedy
the default, to no avail. On the other hand, the Chamber was also observant that the club
denied the player’s allegations and argued having (i) paid him correctly as per the
Employment Contract; and (ii) never received the default notice or the termination letter
dated 21 January 2023.
72. In view of the dissent between the parties, the Chamber made the following remarks:
•
•
Payment of salaries:
o
The player claims the amount of BAM 564,57 remained outstanding from his
July 2022 salary, as well as BAM 75 of each of his salaries from August to
December 2022;
o
The club bears the burden of proving the full payment of the player’s salaries.
However, it did not discharge the burden of proving the payment of such
salaries; and
o
The total amount of BAM 939.57 remained outstanding on the date of
termination. This amount corresponds however to less than one monthly
salary.
Default notice and termination:
o
The club claims it did not receive the player’s emails in this respect; and
o
The player bore the burden of proving that such emails were effectively sent,
pg. 16
REF. FPSD-9373
which could be easily done. The player, however, only provided evidence that
the email address mentioned in the letter is the one indicated in the club’s
website. The copies of the letters on file are not accompanied by the email via
which they were allegedly forwarded to the club and thus, their dispatch could
indeed not be verified – let alone their proper delivery to the club i.e., the
addressee of those correspondences.
73. Thus, the Chamber decided that the player did not fulfil the formal requirements of art.
14bis of the Regulations in order to establish just cause. Due to the fact that the amounts
outstanding represent less than one salary and no evidence of a previous warning
effectively delivered to the club was provided by the player, the DRC was also not satisfied
that the termination constituted an ultima ratio measure or that the player had a just cause
as per art. 14 of the Regulations.
74. In conclusion, the DRC decided that the player could not established to a comfortable
satisfaction degree that the employment relationship was prematurely terminated with
just cause in line with the Regulations.
(C)
What are the consequences that follow?
75. Irrespective of its conclusion as to the (lack of) just cause for the termination, the DRC
decided that the player should be entitled to receive the outstanding remuneration at the
time of termination (i.e., 21 January 2023) based on the general legal principle of pacta sunt
servanda.
76. In particular, the Chamber determined that he should be awarded the following amounts:
•
•
•
•
•
•
•
BAM 564,57 as partial salary for July 2022;
BAM 75 as partial salary for August 2022;
BAM 75 as partial salary for September 2022;
BAM 75 as partial salary for October 2022;
BAM 75 as partial salary for November 2022;
BAM 75 as partial salary for December 2022; and
BAM 677.42 as salary for 21 days in January 2023.
Total: BAM 1,616.99
77. In addition, taking into consideration the player’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award him interest at the rate of 5%
p.a. on the outstanding amounts as from the respective due dates until the date of effective
payment.
78. In contrast, the DRC established that no compensation should be awarded to the player as
he failed to demonstrate the existence of just cause for the termination. For the sake of
completeness, the DRC also highlighted that, because the club did not lodge a counterclaim
pg. 17
REF. FPSD-9373
against the player, the Chamber was prevented to make any ruling in this regard (ne ultra
petita).
79. Along the same lines, the DRC decided that the player should not be entitled to any
reimbursement of flight tickets, since this lacks contractual and regulatory basis.
80. Finally, the claim of the player was ruled partially accepted (i.e., only to grant the
outstanding salaries).
ii. Compliance with monetary decisions
81. 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.
82. 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.
83. Therefore, bearing in mind the above, the DRC decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification of
the decision, failing which, at the request of the player, 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 club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
84. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
85. 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.
e. Costs
86. 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.
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REF. FPSD-9373
87. 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.
88. The DRC concluded its deliberations by rejecting any other requests for relief made by any
of the parties.
pg. 19
REF. FPSD-9373
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Allan Eleouet, is admissible and partially accepted.
2.
The Respondent, FK Tuzla City, must pay to the Claimant the following amount(s):
- BAM 564.57 as outstanding remuneration plus 5% interest p.a. as from 1 August 2022
until the date of effective payment;
- BAM 75 as outstanding remuneration plus 5% interest p.a. as from 1 September 2022
until the date of effective payment;
- BAM 75 as outstanding remuneration plus 5% interest p.a. as from 1 October 2022 until
the date of effective payment;
- BAM 75 as outstanding remuneration plus 5% interest p.a. as from 1 November 2022
until the date of effective payment;
- BAM 75 as outstanding remuneration plus 5% interest p.a. as from 1 December 2022
until the date of effective payment;
- BAM 75 as outstanding remuneration plus 5% interest p.a. as from 1 January 2023 until
the date of effective payment; and
- BAM 677.42 as outstanding remuneration plus 5% interest p.a. as from 21 January 2023
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.
pg. 20
REF. FPSD-9373
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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REF. FPSD-9373
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. 22