Labour Disputes
Texto da decisão
REF FPSD-8574
Decision of the
Dispute Resolution Chamber
passed on 15 March 2023
regarding an employment-related dispute concerning the player Surgira
Erneste
BY:
Jon Newman, USA
CLAIMANT:
Surgira Erneste, Rwanda
Represented by Horizon Legal Consultation
RESPONDENT:
Al Wahda, Syria
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REF FPSD-8574
I. Facts of the case
1.
On 7 August 2022, the Rwandan player Surgira Erneste (hereinafter: the player or the
Claimant) and the Syrian club Al Wahda (hereinafter: the club or the Respondent) concluded
an employment contract valid as from 10 August 2022 until 1 June 2023 (hereinafter: the
employment contract).
2.
According to article 3 of the employment contract, the club undertook to pay the player
inter alia a monthly salary of USD 2,000, “to be paid on the end of each calendar month
during the period of this Contract (i.e., for ten months)”.
3.
Furthermore, article 7 of the employment contract reads as follows:
“Article (7) Termination by the club of the player
1- The contractual agreement articles of which are stipulated in this Contract are to be
terminated upon mutual consent.
2- The club has right to terminate the contract with just cause without any
compensation to be paid to the player.
3- If the player wished to unilaterally terminate the contract, he shall pay the club an
amount equal to all monies received by the player from the club, such due monies to
be paid upon the terminate date.
4- If the player wished to unilaterally terminate the contract, he shall pay the club an
amount of [two] monthly salary from the club, such sue monies should be paid upon
the termination date.
5- The club has the right to terminate the contract in case of force majeure without
paying any compensation to the player”.
4.
Finally, article 11 of the employment contract reads inter alia as follows:
“3- The player is entitled to receive a down payment equals to USD (10000) only Ten
Thousand Dollars which will be due upon signing the contract.
4- The player is entitled to receive a second payment equals to USD (10000) only Ten
Thousand Dollars to be paid after conclusion of the first half of the Regular Season
2022-2023 in Syria.
5- The player is entitled to receive an amount of USD (3000) Three Thousand Dollars for
winning the Syrian Premier League 2022-2023 with the club.
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6- The player is entitled to receive an amount of USD (2000) Two Thousand Dollars for
winning the Syrian Premier League Top Scorer with the club”.
5.
On 2 November 2022, the player put the club in default and requested payment of USD
14,000 corresponding to the sign-on fee (USD 10,000) plus the salaries of September and
November 2022 (USD 2,000 each). He granted the club a 15 days’ deadline to cure the
breach under penalty of termination.
6.
On 18 November 2022, the player notified the club of the termination of the employment
contract due to overdue payables.
7.
The player confirmed that he remained unemployed following the termination of the
employment contract.
II. Proceedings before FIFA
8.
On 18 December 2022, the player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the player
9.
In his claim, the player argued that the club did not pay him any of his remuneration
(including two consecutive salaries), hence giving cause to the termination of the
employment contract in line with article 14bis of the FIFA Regulations on the Status and
Transfer of Players (RSTP).
10. Consequently, the player requested to be awarded the following amounts:
“1- 10 months’ salary of total of USD (20000) in accordance with article 3/1 of the
contract.
2- The down payment of USD (10000) pursuant to article 11/3 of the contract.
3- The second payment of USD (10000) pursuant to article 11/4.
4- Compensation for preventing the Claimant from wining the Syrian Premier League
2022-2023, winning the Syrian Premier League Top Scorer and the bonuses and the loss
of such chances.
5- Compensation for all losses and damages suffered by the Claimant and his family in
Rwanda due to non-payment of his salary, including the Down Payment, the Second
Payment and the transportations subsidy.
6- All official and legal fees and expenses that the Claimant incurred in this dispute.
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7- Legal interest on all amounts due since their respective due dates”.
11. On 20 December 2022, the FIFA general secretariat requested the player inter alia to
specify “the amount in dispute together with a detailed breakdown, indicating individually: (i)
each of its components, (ii) their currency, (iii) their contractual basis and (iv) which period of
time (day/month/year) they correspond to”.
12. On 11 January 2023, the player stated that the amount in dispute was USD 45,000 and
provided the following breakdown:
The component of
the amount in
dispute
10000
10000
3000
2000
2000
2000
2000
2000
2000
2000
2000
2000
2000
2000
Currency
Contractual basis
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
USD
Article 11/3 of the contract (C-3) [...]
Article 11/4 of the contract (C-3) [...]
Article 11/5 of the contract (C-3) [...]
Article 11/6 of the contract (C-3) [...]
Article 3/1 of the contract (C-3) [...]
Corresponding
period of time
07/08/2022
20/02/2023
21/04/2023
21/04/2023
31/08/2022
30/09/2022
31/10/2022
30/11/2022
31/12/2022
31/01/2023
28/02/2023
31/03/2023
30/04/2023
31/05/2023
b. Position of the Respondent
13. The club failed to submit its reply to the claim, in spite of being invited to do so.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether he was competent to deal with the case at hand. In
this respect, he took note that the present matter was presented to FIFA on 18 December
2022 and submitted for decision on 15 March 2023. Taking into account the wording of
art. 34 of the October 2022 edition of the Procedural Rules Governing the Football
Tribunal (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural
Rules is applicable to the matter at hand.
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15. Subsequently, the Single Judge 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 (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 Rwandan player
and a Syrian club.
16. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he 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 18 December 2022, the October
2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter
at hand as to the substance.
b. Burden of proof
17. The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
18. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments, and documentary evidence,
which he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
19. The foregoing having been established, the Single Judge moved to the substance of the
matter and took note of the fact that it pertains to a claim of a player against a club for
outstanding remuneration and compensation for breach of contract.
20. In parallel, the Single Judge took into account that the club, for its part, failed to present
its response to the claim of the player, in spite of having been invited to do so. In this way,
the Single Judge considered that the club renounced its right to defence and thus
accepted the allegations of the player. He equally confirmed that a decision shall be made
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on the basis of the evidence and argumentation presented by the player only (cf. art. 14
par. 1 of the Procedural Rules).
21. On this note, the Single Judge observed that the player terminated the employment
contract on 18 November 2022 due to overdue payables. He claims not having received
any remuneration under the employment contract and, moreover, has provided written
evidence of having put the club in default on 2 November 2022, i.e. at least 15 days before
unilaterally terminating the contract.
22. Specifically regarding the default notice on file, the Single Judge acknowledged that the
player did only request payment of the sign-on fee and the salaries of September and
November 2022. Nevertheless, as clarified by the player in his statement of claim and
subsequent correspondence, it appears that there was a material mistake while drafting
the letter and the player was indeed referring to the amounts due in September and
October 2022, which were outstanding at that time.
23. In addition, the Single Judge determined that the club bore the burden of proving that it
indeed complied with the financial terms of the employment contract concluded between
the parties. Nevertheless, as it failed to submit any reply to the claim, the player’s
argumentation remained undisputed (cf. art. 13, par. 5 of the Procedural Rules).
24. In light of all the above, the Single Judge decided that the employment contract was
terminated with just cause by the player. It followed, in his view, that the club should be
then liable to the consequences that follow.
ii. Consequences
25. Having stated the above, the Single Judge turned to the question of the consequences of
such unjustified breach of contract committed by the club.
26. The Single Judge observed that the outstanding remuneration at the time of termination
amounted to USD 18,000 i.e., the sign-on fee plus the salaries from August until November
2022.
27. Consequently, in accordance with the general legal principle of pacta sunt servanda as well
as the constant practice of the Dispute Resolution Chamber (DRC) in this regard, the
Single Judge decided that the club shall be liable to pay to the player the abovementioned
quantum plus 5% interest as from the respective due dates until the date of effective
payment.
28. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the Single
Judge 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
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for in the contract at the basis of the dispute, with due consideration for the law of the
country concerned, the specificity of sport and further objective criteria, including in
particular, the remuneration and other benefits due to the player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
29. In application of the relevant provision, the Single Judge 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.
30. At this point, the Single Judge was observant that there was a termination / compensation
clause employment contract, however it does not refer to the hypothesis of the player
terminating the contractual relationship with just cause – such as in the case at hand.
Furthermore, the Single Judge also highlighted that such clause is not reciprocal and
should, in any event, be set aside in line with the well-established jurisprudence of the
FIFA DRC.
31. As a consequence, the members of the Single Judge determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Single Judge recalled
that said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
32. Bearing in mind the foregoing as well as the claim of the player, the Single Judge
proceeded with the calculation of the monies payable to the player under the terms of
the employment contract from the date of its unilateral termination until its end date.
Consequently, the Single Judge concluded that the amount of USD 22,000 (i.e., the
remaining 7 salaries of USD 2,000 plus the second payment of USD 10,000) serves as the
basis for the determination of the amount of compensation for breach of contract.
33. For the sake of completeness, the Single Judge underlined that none of the bonuses
mentioned by the player should be taken into consideration insofar as they are
conditioned to future events and performance of specific sporting goals, hence have
uncertain nature only.
34. In continuation, the Single Judge verified as to whether the player 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 FIFA 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
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calculation of the amount of compensation for breach of contract in connection with the
player’s general obligation to mitigate his damages.
35. Indeed, the player did not find a new employment, therefore was not able to mitigate his
damages. Furthermore, the Single Judge stressed that no additional compensation should
be awarded in this case cf. art. 17 par. 1 lit. ii) of the Regulations.
36. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Single Judge decided that the club must pay the amount of USD
22,000 to the player, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
37. Lastly, taking into consideration the player’s request as well as the constant practice of
the Single Judge in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of the date of the termination of the contract (i.e.,
18 December 2022) until the date of effective payment.
iii. Compliance with monetary decisions
38. Finally, taking into account the applicable Regulations, the Single Judge 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.
39. In this regard, the Single Judge 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.
40. Therefore, bearing in mind the above, the Single Judge 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.
41. 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.
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42. The Single 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.
24 par. 8 of the Regulations.
d. Costs
43. The Single Judge 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 Single Judge decided that no procedural costs
were to be imposed on the parties.
44. Likewise and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
45. Lastly, the Single Judge concluded the deliberations by rejecting any other requests for
relief made by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Surgira Erneste, is partially accepted.
2.
The Respondent, Al Wahda, has to pay to the Claimant the following amount(s):
- USD 10,000 as outstanding remuneration plus 5% interest p.a. as from 7 August 2022
until the date of effective payment;
- USD 2,000 as outstanding remuneration plus 5% interest p.a. as from 1 September
2022 until the date of effective payment;
- USD 2,000 as outstanding remuneration plus 5% interest p.a. as from 1 October 2022
until the date of effective payment;
- USD 2,000 as outstanding remuneration plus 5% interest p.a. as from 1 November
2022 until the date of effective payment;
- USD 2,000 as outstanding remuneration plus 5% interest p.a. as from 1 December
2022 until the date of effective payment; and
- USD 22,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 18 November 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.
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6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification
of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the
request of a party within five days of the notification of the motivated decision, to publish
an anonymised or a redacted version (cf. article 17 of the Procedural Rules).
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