Labour Disputes
Texto da decisão
Decis ion of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 21 January 2020,
by
by Omar Ongaro (Italy), DRC judge,
on the matter between the player,
Ablay e Yaré Fay e, Senegal,
represented by Mr Ousmane Seck
as Claimant
and the club,
CD Av es , Portugal
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1. On 12 February 2019, the Respondent presented an offer to the Claimant, by means of
which the Claimant would be entitled to a monthly net salary of EUR 7,000, as well as “ticket
and accommodation”.
2. On 14 February 2019, the Claimant and the Respondent (hereinafter jointly referred to as:
the parties) concluded an employment contract (hereinafter: the contract), valid as from
15 February 2019 until 30 June 2019.
3. According to art. 2 par. 1 of the contract, “the player confers to Aves CD, in express and
irrevocably, the right to extend this Agreement for one (1) sports season additional – sports
season 2019/20”.
4. Pursuant to art. 3 of the contract, the Respondent undertook to pay the following
remuneration to the Claimant:
“1. CD Aves will pay the Player, as consideration for the activity carried out by the Player,
the following amounts as net remuneration:
a) 2018/2019 season: four monthly installments of € 3,500.00, the first being due
on March 20 2019 and the remaining installments on the 20th (twenty) of the
following month to which it’s relates;
2. The Player will also be granted a housing allowance in the gross value of 500.00 €,
which will be due as long as the contract is in force and will be paid monthly, upon
payment of the aforementioned remunerations.”
5. On 2 July 2019, the Respondent informed the Claimant, via a text message, that the head
coach requested a meeting with the Claimant.
6. On 30 July 2019, the Claimant sent a “Formal notice of payment of salary arrears” to the
Respondent, pointing out that “his [player] salaries for the months of May and June 2019
(…), have not been made (…). If this situation lasts for 10 days, we will be forced to seize
the competent authorities against you [club].”
7.
On 29 August 2019, the Portuguese Sindicato dos jugadores (hereinafter: the Players’
Union) contacted the Respondent, stating that “(…) in the absence of other elements, CD
Aves would only have to settle last season’s credits, which it would do quickly. In order for
the player to move on and to close this matter, we inform you that the last two salaries
and the last two housing subsidies totalling €8,000 (€8,000) remain outstanding”.
8.
On the same day, the Respondent informed the Players’ Union that the payment of
EUR 8,000 had been made in favour of the Claimant. On 30 August 2019, the Players’ Union
thanked the Respondent for “the promptness with which you resolved this issue”.
Player Ablaye Yaré Faye, Senegal / Club CD Aves, Portugal
2
9. On 2 September 2019, the Claimant lodged a claim against the Respondent in front of FIFA.
10. In his claim, the Claimant held that on 28 June 2019, the parties extended the contract, as
per art. 2 par. 1, for one season as from 1 July 2019 until 30 June 2020.
11. The Claimant submitted an unsigned copy of said contract extension as part of his claim,
stating that the original signed version was in possession of the Respondent. In this context,
the Claimant stated that the contract extension between the parties was published by the
newspaper A BOLA on its website on 1 July 2019.
12. In light of the above, the Claimant argued that the Respondent, through its conduct,
unilaterally terminated the contract without just cause. As such, the Claimant requested
the total amount of EUR 54,500, corresponding to the following:
-
EUR 7,000 net, as salaries for the months of May and June 2019, plus 5% interest as
from 20 June 2019 until the date of effective payment;
EUR 35,000 net, as the annual remuneration as provided in the contract extension
for the season 2019/2020;
EUR 5,000 gross, corresponding to the housing allowance, as provided in the
contract extension for the season 2019/2020;
EUR 7,500 gross, as damages.
13. In its reply, the Respondent acknowledged that the parties drafted an extension to the
contract, both in Portuguese and French, but that said contract was never signed by the
parties.
14. In this regard, the Respondent held that it lost its interest in renewing the contract, as “(…)
the player did not present the physical requirements to play and, certainly, would hardly
have them ever again.”
15. Finally, the Respondent stated that an agreement was concluded with the Players’ Union
to put an end to this matter. In this context, the Respondent claimed to have paid the
amount of EUR 8,000 in favour of the Claimant.
II. Cons iderations of the Dis pute Res olution Cham ber judge
1. First, the Dispute Resolution Chamber judge (hereinafter also referred to as: the judge)
analysed whether he was competent to deal with the matter at stake. In this respect, he
took note that the present matter was submitted to FIFA on 2 September 2019.
Consequently, the 2018 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is
applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
2. Subsequently, the judge referred to art. 3 par. 1 of the Procedural Rules and confirmed that
in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on
the Status and Transfer of Players (edition June 2019), he was competent to decide on the
Player Ablaye Yaré Faye, Senegal / Club CD Aves, Portugal
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present matter, which concerns an employment-related dispute with an international
dimension between a Senegalese player and a Portuguese club.
3.
In continuation, the 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 (edition June 2019), and
considering that the present claim was lodged on 2 September 2019, the June 2019 edition
of said regulations (hereinafter: Regulations) were applicable to the matter at hand as to
the substance.
4.
The competence of the Dispute Resolution Chamber judge and the applicable regulations
having been established, the judge entered into the substance of the matter. In this
respect, he started by acknowledging all the above-mentioned facts, the arguments and
the documentation submitted by the Claimant and the Respondent. However, the 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.
5.
First, the Dispute Resolution Chamber judge noted that the parties entered into an
employment contract valid as from 15 February until 30 June 2019, according to which the
Respondent undertook to pay to the Claimant four monthly instalments of EUR 3,500 for
the 2018/2019 season, as well as a monthly housing allowance in the amount of EUR 500.
6.
Second, the judge noted that according to art. 2 par. 1 of the contract, the Respondent
was entitled to extend the contract for one additional season, i.e. for the 2019/2020 season.
7.
In this context, the judge acknowledged the Claimant’s position that the parties extended
the contract on 28 June 2019, for one additional season as from 1 July 2019 until 30 June
2020. On the other hand, the judge also took note of the Respondent’s position, according
to which the parties drafted the said extension but never signed it, as the Respondent was
no longer interested in the services of the Claimant.
8.
Third, the judge observed that the Claimant put the Respondent in default to pay his
salaries of May and June 2019.
9.
Furthermore, the judge also took note of the correspondence exchanged between the
Respondent and the Players’ Union, according to which a payment of EUR 8,000,
corresponding to outstanding remuneration, would have been made by the Respondent
in favour of the Claimant, with a view of putting an end to the dispute.
10. In continuation, the judge noted that the Claimant lodged a claim against the Respondent
maintaining that the Respondent had terminated the contract without just cause.
Consequently, the Claimant requested the total amount of EUR 54,500.
11. Having established the aforementioned, the judge deemed that the underlying issues in
the present dispute was to determine whether outstanding remuneration was due to the
Claimant and whether the contract had been extended for the season 2019/2020, and as
such whether the Respondent had unilaterally terminated said contract.
Player Ablaye Yaré Faye, Senegal / Club CD Aves, Portugal
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12. In this context, the judge first observed that following the default notice sent by the
Claimant on 30 June 2019, the Respondent had not contested the outstanding
remuneration due to the Claimant for the months of May and June 2019.
13. The judge then proceeded to analyse the correspondence between the Respondent and the
Players’ Union and took good note of the alleged payment of EUR 8,000 made in favour of
the Claimant as outstanding remuneration for the season 2018/2019. However, the judge
emphasised that the Respondent failed to submit evidence that the payment of EUR 8,000
had duly been made in favour of the Claimant.
14. In light of the above, the judge concluded that the Claimant was entitled to outstanding
remuneration for the months of May and June 2019 in the amount of EUR 7,000.
15. In addition, taking into account the Claimant’s request, the judge decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR 7,000 as of
the due dates until the date of effective payment.
16. Having established the above, the judge took note of the Claimant’s claim of EUR 35,000
and EUR 5,000, respectively corresponding to the annual remuneration and to the housing
allowance as provided in the contract extension for the season 2019/2020.
17. In this context, the judge recalled that while the Claimant affirmed that the parties signed
the extension of the contract on 28 June 2019, for a duration of one year as from 1 July
2019 until 30 June 2020, the Respondent contested having signed the document, stating
that it had lost interest in renewing the contract.
18. In these circumstances, the judge also recalled the content of art. 12 par. 3 of the Procedural
Rules, which stipulates that any party claiming a right on the basis of an alleged fact shall
carry the burden of proof.
19. This said, the judge observed that the contract extension provided by the Claimant is
unsigned by the parties.
20. Therefore, the judge concluded that there was no tangible evidence, enabling to ascertain
that the contract had been validly extended for the season 2019/2020.
21. In view of the above, the judge decided to reject the Claimant’s requests for the payment
of EUR 35,000 and EUR 5,000.
22. In continuation, due to the absence of any contractual provision and the lack of evidence
provided, the judge also decided to reject the Claimant’s claim for damages in the amount
EUR 5,000.
23. Consequently, in view of all of the above, the Dispute Resolution Chamber judge decided
that the Respondent must pay the amount of EUR 7,000, plus 5% interest p.a. as from the
due dates until the effective date of payment, to the Claimant.
24. The judge concluded his deliberations in the present matter by establishing that any further
claim lodged by the Claimant is rejected.
Player Ablaye Yaré Faye, Senegal / Club CD Aves, Portugal
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25. Furthermore, the 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 concerned party to pay the relevant amounts
of outstanding remuneration and/or compensation in due time.
26. In this regard, the 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.
27. Therefore, bearing in mind the above, the Dispute Resolution Chamber judge decided that,
in the event that the Respondent does not pay the amount 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.
28. Finally, the judge recalled that the above-mentioned ban will be lifted immediately and
prior to its complete serving upon payment of the due amount, in accordance with art.
24bis par. 3 of the Regulations.
III. Decis ion of the Dis pute Res olution Cham ber judge
1.
The claim of the Claimant, Mr. Ablaye Yaré Faye, is partially accepted.
2.
The Respondent, CD Aves, has to pay to the Claimant the amount of EUR 7,000 plus 5%
interest p.a. as follows:
a. 5% p.a. on the amount of USD 3,500 as of 21 June 2019 until the date of effective
payment;
b. 5% p.a. on the amount of USD 3,500 as of 21 July 2019 until the date of effective
payment.
3.
Any further claim lodged by the Claimant is rejected.
4.
The Claimant is directed to inform the Respondent, immediately and directly, preferably
to the e-mail address as indicated on the cover letter of the present decision, of the
relevant bank account to which the Respondent must pay the amounts mentioned under
point 2 above.
5.
The Respondent shall provide evidence of payment of the due amounts in accordance
with point 2 above to FIFA to the e-mail address [email protected], duly translated, if need
be, into one of the official FIFA languages (English, French, German, Spanish).
6.
In the event that the amount due plus interest in accordance with point 2 above are not
paid by the Respondent w ithin 45 day s as from the notification by the Claimant of the
relevant bank details to the Respondent, the Respondent shall be banned from
Player Ablaye Yaré Faye, Senegal / Club CD Aves, Portugal
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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
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
7.
The ban mentioned in point 6 above will be lifted immediately and prior to its complete
serving, once the due amount is paid.
8.
In the event that the aforementioned sum plus interest 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 FIFA’s Disciplinary Committee for consideration and a formal
decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or the
DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber).
Note relating 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). The statement of appeal must be sent to the CAS
directly within 21 days of receipt of notification of this decision and shall contain all the
elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days
following the expiry of the time limit for filing the statement of appeal, the appellant shall file
a brief stating the facts and legal arguments giving rise to the appeal with the CAS.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber judge:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Ablaye Yaré Faye, Senegal / Club CD Aves, Portugal
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