Labour Disputes
Texto da decisão
REF. FPSD-12010
Decision of the
Dispute Resolution Chamber
passed on 13 December 2023
regarding an employment-related dispute concerning
the player Babacar Fall
BY:
Angela Collins (Australia), Single Judge
CLAIMANT:
Babacar Fall, Italy
Represented by Pauline Bove
RESPONDENT:
FC Dinamo, Albania
pg. 2
REF. FPSD-12010
I. Facts of the case
1.
On 31 January 2023, the Albanian club FC Dinamo (hereinafter: the club or the Respondent)
and the Italian player Babacar Fall (hereinafter: the player or the Claimant) concluded an
employment contract (hereinafter: the Contract) valid from 31 January 2023 to 31 May 2023.
2.
In accordance with the Contract, the club undertook to pay to the player inter alia a monthly
net salary of EUR 600.
3.
On 8 May 2023, the player and the club (hereinafter jointly referred to as: the parties)
concluded an agreement for the premature termination of the Contract (hereinafter: the
Termination Agreement).
4.
Pursuant to art. 3 par. 3 of the Termination Agreement, the parties declared that they did
not have “any financial, legal, moral or administrative claims towards each other (…)”.
5.
By correspondence dated 14 August 2023, the player put the club in default of payment of
EUR 1,800 as outstanding remuneration under the Contract, contextually granting the club
a deadline of 10 days in order to remedy the default.
6.
On 17 August 2023, the club replied to the player arguing that by signing the Termination
Agreement the latter had waived any potential claim regarding his salaries.
7.
On 31 August 2023, the player sent a second default notice to the club, granting 5 days to
pay the alleged outstanding amounts, to no avail.
II. Proceedings before FIFA
8.
On 2 October 2023, 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.
According to the player, the club forced him to sign the Termination Agreement by duress,
hence the said document shall be disregarded.
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REF. FPSD-12010
10. Furthermore, the player argued that, irrespective of the validity of the Termination
Agreement, he would still be entitled to receive wages from work performed in the months
preceding the said agreement as they were already accrued and not waivable.
11. The requests for relief of the player, accordingly, were the following:
-
EUR 600 as outstanding salary for February 2023
EUR 600 as outstanding salary for March 2023
EUR 600 as outstanding salary for April 2023
5% per annum as from the respective due dates
b. Position of the club
12. In its reply, the club objected to the player’s claim, arguing that by means of the
Termination Agreement the parties clearly waived any financial claim against each other.
13. In this respect, the club stated that the main reason for signing the Termination Agreement
was the player’s repeated violation of the Contract, in particular by not attending the team’s
training sessions and official matches.
14. Accordingly, the club held having imposed several fines on the player during their
employment relationship, which eventually led to the latter asking for the premature
termination of the Contract in order to avoid his financial liability towards the club.
15. In support of its position, the club produced evidence of the notifications related to each
fine imposed on the player between 14 February 2023 and 27 April 2023 as well as the
relevant communication to the Albanian Football Federation.
16. In conclusion, the club requested to reject the player’s claim in its entirety.
c. Player’s rejoinder
17. In his rejoinder, the player argued that he was never informed by the club of any
disciplinary procedure taking place, thus violating his right to be heard.
18. In particular, the player pointed out that the e-mail address adopted by the club to notify
the relevant fines does not correspond to the one effectively in use as indicated by the
player in his claim, which also coincides with the one related to the player’s ID in the FIFA
Legal Portal.
19. Beside the above, in the player’s view, the amount of each fine imposed by the club would
be clearly excessive and disproportionate, corresponding to almost 50% of his salary,
hence these shall be disregarded in any event.
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REF. FPSD-12010
20. In conclusion, the player argued that having received no remuneration as from the
beginning of the Contract nor having been selected to participate in almost any games, he
would have no leverage nor alternatives but to sign the Termination Agreement.
21. The player therefore reiterated his original requests for relief.
d. Club’s final comments
22. The club did not provide any further comment on the matter, in spite of having been invited
to do so by the FIFA general secretariat.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
23. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the Single Judge) analysed whether she was competent to deal with the case at hand.
In this respect, she took note that the present matter was presented to FIFA on 2 October
2023 and submitted for decision on 13 December 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.
24. 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 lit. b) of the
Regulations on the Status and Transfer of Players, edition May 2023, the Single Judge of the
Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns
an employment-related dispute with an international dimension between an Italian player
and an Albanian club.
25. 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 (May 2023 edition), and
considering that the present claim was lodged on 2 October 2023, the aforementioned
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
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REF. FPSD-12010
26. 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 she 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
27. 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 she will refer only to the facts, arguments, and documentary evidence,
which she considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
28. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that while the player claims the payment of outstanding
salaries under the Contract, the club argues that by signing the Termination Agreement
both parties waived any potential claims towards each other.
29. In this context, the Single Judge deemed it appropriate to point out that, even though
according to the player the Contract was de facto terminated under duress by the club, the
player did not claim any type of compensation for breach of contract by the latter, limiting
his request to the alleged outstanding salaries.
30. Accordingly, the Single Judge found that the underlying question in dispute is whether the
Termination Agreement signed by the player is to be considered a valid waiver for his
outstanding remuneration. On this note, the Single Judge highlighted that the analysis of
the validity of the Termination Agreement would be made considering the aspects outlined
below, given that no evidence of the alleged duress was presented by the player, who
caried the burden of proof in this respect.
31. At this point, the Single Judge wished to recall the decisions and jurisprudence of the Court
of Arbitration for Sport (CAS) with regards to waivers. In this respect, the Single Judge
outlined more in particular the contents of the awards in cases CAS 2020/A/6727 as well as
CAS 2016/A/4582, to which she adheres.
32. The conclusion that follows from the cited CAS jurisprudence is that players in principle
cannot waive their right to outstanding remuneration. At the same time, the Single Judge
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REF. FPSD-12010
highlighted that the case at hand does not pertain to compensation for breach of contract,
so this issue, although discussed in depth by the CAS, does not need to be examined.
33. The foregoing considerations coupled with the teachings of CAS jurisprudence, which are
detailed below, led the Single Judge to conclude that the waiving of salary for work already
performed, in the case at hand, cannot be considered as validly made. In this context, CAS’
case law in connection with art. 341 of the Swiss Code of Obligations (SCO) states that
employees are prevented from waiving, during the duration of the contract and within a
month following the (effective) end of the contractual relationship, claims arising from
mandatory provisions of the law or of a collective agreement. By the same token, art. 361
and 362 SCO, which list respectively the absolutely mandatory provisions (i.e. those that
cannot be derogated from, neither to the detriment of the employer or employee) and the
relative mandatory provisions (i.e. those that protect the employee only as the provisions
listed therein cannot be derogated from, to the detriment of the latter.
34. along these lines, art. 20 par. 1 SCO rules that a contract (or clause) is null and void if its
terms are unlawful (i.e. such in a case where a contract that contravenes art. 361/362). To
this extent, the salary, as established under art. 322 SCO is not listed under art. 361/362,
entailing that parties may agree on the reduction in pay for the future but not for work
already done for the period established under art. 341.
35. Furthermore, the Single Judge emphasized that CAS jurisprudence is reflective of the fact
that for receipts in full settlement, these are to be considered in contravention of art. 341
SCO if they contain a unilateral waiver by the employee of a claim laid down in a mandatory
provision (art. 361/362), and that this claim has not been compensated through a
transaction. In other words: if the player indirectly waives payment of wages for work
already done / outstanding salaries by way of a remission of debt (e.g., “I acknowledge
having received everything”, whereas this is not true), this waiver is null and void unless it
is part of a genuine transaction involving concessions of comparable importance on the
part of each party.
36. In concrete terms, CAS jurisprudence reveals that to assess whether such a transaction is
permissible, the court/deciding body is required to conduct a balancing of interests,
checking whether the mutual claims waived by each party are of comparable value. Put in
another way, whether there is an appropriate equivalence between the parties’ reciprocal
concessions.
37. In this regard, the Single Judge noted that the club did not contest having failed to pay the
amounts claimed by the player, nor it provided any evidence of the violations allegedly
committed by the latter which would have allegedly led to the player’s request for a mutual
termination, thus completely failing to sustain its burden of proof with regard to the
existence of any such valuable concessions. Equally, the club was not able to demonstrate
that it had validly conducted disciplinary proceedings against the player, which would entail
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REF. FPSD-12010
proper sanctioning and could have explained the mutual concessions made by both
parties, therefore validating the Termination Agreement.
38. Accordingly, the Single Judge confirmed adhering to the CAS enshrined jurisprudence and
established that the Termination Agreement is partially rendered null and void to establish
that the salaries of February 2023, March 2023 and April 2023 cannot be waived and thus
shall be awarded.
39. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge established that the club is liable to pay to the player the amounts which
were outstanding under the Contract at the moment of the termination, i.e. EUR 1,800 (i.e.
EUR 600 x 3).
40. In addition, taking into consideration the player’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard, the latter decided to award the player
interest at the rate of 5% p.a. on the outstanding amounts as from the respective due dates
until the date of effective payment.
ii. Compliance with monetary decisions
41. 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.
42. 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.
43. Therefore, bearing in mind the above, the Single Judge 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.
44. 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.
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REF. FPSD-12010
45. 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
46. 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.
47. 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.
48. Lastly, the Single Judge concluded the deliberations by rejecting any other requests for
relief made by any of the parties.
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REF. FPSD-12010
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Babacar Fall, is accepted.
2.
The Respondent, FC Dinamo, must pay to the Claimant the following amount(s):
EUR 600 as outstanding remuneration plus 5% interest p.a. as from 1 March 2023
until the date of effective payment;
EUR 600 as outstanding remuneration plus 5% interest p.a. as from 1 April 2023 until
the date of effective payment;
EUR 600 as outstanding remuneration plus 5% interest p.a. as from 1 May 2023 until
the date of effective payment;
3.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-12010
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
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