Labour Disputes
Texto da decisão
REF FPSD-4158
Decision of the
Dispute Resolution Chamber
passed on 16 February 2022
regarding an employment-related dispute concerning the player Abraham
Akwasi Frimpong
BY:
DE WEGER Frans (The Netherlands), Chairperson
AWAD ALTHEBITY Khalid (Saudi Arabia), member
SARTORI Stefano (Italy), member
CLAIMANT:
Abraham Akwasi Frimpong, Ghana
Represented by Mr Gianpaolo Monteneri & Ms Anna Smirnova
RESPONDENT:
Al Ain FC, Saudi Arabia
Represented by Mr Ali Abbes and Mr Mohamed Rokbani
Page 2
REF FPSD-4158
I.
Facts of the case
1.
On 1 February 2021, the Ghanaian player Abraham Akwasi Frimpong (hereinafter: the player
or the claimant) and the Saudi club, Al Ain FC (hereinafter: the club or the Respondent)
concluded an employment contract valid as from the same date until 30 June 2022
(hereinafter: the contract).
2.
In accordance with Clause 4 of the contract, the Claimant was entitled to a total remuneration
of USD 1,100,000 net, and benefits as follows:
- USD 200,000 as advance payment,
- USD 52,942 as monthly salary payable at the end of each month;
- housing allowance;
- car service;
- insurance;
- two roundtrip business air tickets between Saudi Arabia and Ghana (or to Europe or
to any other destination as instructed by the Claimant) per season for the Claimant and
his wife.
3.
Following the end of season 2020/2021, the player went to his home country.
4.
Subsequently on 27 July, 1, 3 and 11 August 2021, the player’s agent requested the club to
provide the player with the schedule for pre-season trainings, to no avail.
5.
On 16 August 2021, the club instructed the player to return to Saudi Arabia within 5 days.
6.
On 17 August 2021, the player requested the club to provide him with a valid entry visa, to
arrange for the flights from Ghana and accommodation for pre-season.
7.
On 18 August 2021, the club presented the player with flight options but remained silent
regarding the visa.
8.
On 19 August 2021, the player reiterated his request regarding the visa and indicated that
his salaries of June, July and August 2021 were due.
9.
On 3 September 2021, the player formally put the club in default of payment of USD 156,826
regarding his salaries between June and August 2021, granting the club with 15 days to cure
the breach. Following this notice, the player and the club engaged in negotiations to settle
the matter amicably, however without success. Their last correspondence was on 12
September 2021.
10. On 13 September 2021, the club sent a letter to the player terminating the employment
contract on the basis of the player’s “behaviour and performance”.
Page 3
REF FPSD-4158
11. Following the termination of the contract, the player remained unemployed.
II. Proceedings before FIFA
12. On 1 November 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
13. The Claimant filed the claim at hand for outstanding remuneration and compensation for
breach of contract.
14. The player is of the opinion that the club terminated the contract without just cause. The
player highlighted at the club breached the contract multiple times, “in particular [failing] to
pay timely the salaries due to the Claimant and failure to arrange for the entry visa for him”.
15. Accordingly, the player seeks the following:
Outstanding remuneration:
a. USD 52,942 (corresponding to the salary for June 2021) plus 5% interest p.a. as from 1
July 2021 until the date of effective payment;
b. USD 52,942 (corresponding to the salary for July 2021) plus 5% interest p.a. as from 1
August 2021 until the date of effective payment;
c. USD 52,942 (corresponding to the salary for August 2021) plus 5% interest p.a. as from 1
September 2021 until the date of effective payment;
d. USD 22,941 (corresponding to the salary for the period from 1 through 13 September
2021) plus 5% interest p.a. as from 14 September 2021 until the date of effective
payment.
Compensation for breach of contract: USD 453,357 plus 5% interest p.a. as from 14
September 2021 until the date of effective payment
16. The Claimant further asks that “in the event that the Claimant should enter a new
employment contract by the time of the FIFA decision, to condemn the Respondent to pay in
favour of the Claimant the Additional Compensation in the amount of six monthly salaries in
accordance with Art. 17 par.1 (ii) RSTP” and “To sanction the Respondent for the breach of
contract in accordance with Art. 17 par. 4 RSTP for the next two registration periods”.
b. Position of the Respondent
17. The club in its reply confirmed the facts as outlined in the player’s claim and stated that it
terminated the contract because it had to sign another foreign player. More in particular, the
Page 4
REF FPSD-4158
club argued that the player never returned to Saudi Arabia and thus such “prolongued
absence” constituted just cause.
18. The club deems that the player is not entitled to any compensation and asks the that the
claim be dismissed.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. 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 1 November 2021 and submitted for
decision on 16 February 2022. Taking into account the wording of art. 34 of the October
2021 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.
20. Subsequently, 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 lit. b) of the Regulations on
the Status and Transfer of Players (August 2021 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 Ghanaian player and a Saudi club.
21. 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 Players (August 2021 edition), and
considering that the present claim was lodged on 1 November 2021, the August 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
22. 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 Transfer
Matching System (TMS).
Page 5
REF FPSD-4158
c. Merits of the dispute
23. 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 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
24. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties essentially dissent if the club had just cause to
terminate the contract, and the consequences thereto.
25. In this context, the Chamber acknowledged that it its task was to determine whether the
reasons put forward by the club amounted to good cause for the termination of the contract.
26. In this scenario, the Chamber recalled its long-standing jurisprudence, according to which
only a breach or misconduct which is of a certain severity justifies the termination of a contract
without prior warning. In other words, only when there are objective criteria which do not
reasonably permit to expect the continuation of the employment relationship between the
parties, a contract may be terminated prematurely. Hence, if there are more lenient measures
which can be taken in order for an employer to assure the employee’s fulfilment of his
contractual duties, such measures must be taken before terminating an employment contract.
A premature termination of an employment contract can only be an ultima ratio.
27. Against this background, the DRC observed that the player had already put the club in default
of payment of three salaries when the two parties engaged in a settlement attempt, following
which the club abruptly terminated the contract on the grounds of the player’s “behaviour
and performance”. At the same time, it noted that the termination by the club never referred
to the player’s absence as argued in the club’s defence. Therefore, the Chamber could not
concur to the club’s defence that the absences of the player justified the termination of the
contract.
28. The DRC found that what the factual background of the case denotes, together with the
club’s admission that it wanted to sign another foreign player, is that the club was, simply
put, not interested in the player’s services anymore and thus decided to terminate the
contract.
29. In accordance with the jurisprudence of the Football Tribunal and the principle of ultima ratio,
such decision by the club does not justify the early and abrupt termination of the contract. In
fact, the club’s position is in sheer contradiction with the ideals of contractual stability
Page 6
REF FPSD-4158
provided for in the Regulations. The Chamber was firm thus to confirm that the club did not
have just cause to terminate the contract and must endure the consequences that follow.
ii. Consequences
30. Having stated the above, the members of the Chamber turned their attention to the question
of the consequences of such unjustified breach of contract committed by the Respondent.
31. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to 3 salaries under
the contract, amounting to EUR 52,942 each, plus the pro-rata salary regarding September
2021.
32. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which
were outstanding under the contract at the moment of the termination. In addition, taking
into consideration the Claimant’s request as well as the constant practice of the Chamber in
this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on the
outstanding amounts as from their respective due dates until the date of effective payment.
33. The breakdown of the amounts is detailed in continuation due to the player’s specific request.
34. Having stated the above, the Chamber 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 Chamber
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 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.
35. In application of the relevant provision, the Chamber 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. In this regard, the Chamber established that no
such compensation clause was included in the employment contract at the basis of the matter
at stake.
36. As a consequence, the members of the Chamber 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 Chamber recalled that said
provision provides for a non-exhaustive enumeration of criteria to be taken into consideration
when calculating the amount of compensation payable.
Page 7
REF FPSD-4158
37. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract from
the date of its unilateral termination until its end date. Consequently, the Chamber concluded
that the amount of EUR 529,420 (i.e. 10 months as the residual value of the contract, from
September 2021 to June 2022) serves as the basis for the determination of the amount of
compensation for breach of contract.
38. In continuation, the Chamber 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
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 calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
39. The player did not find new employment following the termination of the contract. In line
with art. 17 par. 1 lit. ii) of the Regulations, a player is entitled to an amount corresponding
to three monthly salaries as additional compensation should the termination of the
employment contract at stake be due to overdue payables, and provided the player in
question has mitigated the damages suffered by way of a new employment contract. Since
there is no mitigation in the matter at hand, no additional compensation can be awarded for
the maximum amount of compensation cannot exceed the residual value of the (terminated)
contract.
40. At this point, the Chamber noted that the overall amount requested by the player is USD
635,124 (i.e. USD 52,942 times 3 as late salaries from June to August 2021, plus USD 22,941
as pro rata salary of September 2021, plus USD 453,357 as compensation for breach of
contract). Per its own calculations however, the DRC concluded that the player would be
entitled in principle to a grand total of USD 688,246 (i.e. 52,942*3 as late salaries from June
to August 2021, plus USD 529,420 as compensation for breach of contract, including the
entire month of September 2021).
41. On the basis therefore of the principle ne ultra petita, the DRC therefore decided to grant the
player his outstanding remuneration and compensation for breach of contract exactly as he
claimed, except for the interest on the compensation which shall be awarded as from the
date of claim and until the date of effective payment.
42. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, together with the principle pacta sund servanda, the Chamber decided
that the club must pay to the player (i) EUR 181,767 as outstanding remuneration and (ii) EUR
529,420 as compensation for breach of contract without just cause, which was to be
considered a reasonable and justified amount in the present matter.
Page 8
REF FPSD-4158
iii. Compliance with monetary decisions
43. Finally, 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.
44. 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.
45. Therefore, bearing in mind the above, the DRC 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.
46. 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.
47. 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.
d. Costs
48. 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.
49. 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.
50. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
Page 9
REF FPSD-4158
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Abraham Akwasi Frimpong, is partially accepted.
2.
The Respondent, Al Ain FC, has to pay to the Claimant the following amount(s):
- USD 52,942 as outstanding remuneration plus 5% interest p.a. as from 1 July 2021 until
the date of effective payment;
- USD 52,942 as outstanding remuneration plus 5% interest p.a. as from 1 August 2021 until
the date of effective payment;
- USD 52,942 as outstanding remuneration plus 5% interest p.a. as from 1 September 2021
until the date of effective payment;
- USD 22,941 as outstanding remuneration plus 5% interest p.a. as from 13 September 2021
until the date of effective payment;
- USD 453,357 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 1 November 2021 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 (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1.
2.
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.
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.
Page 10
REF FPSD-4158
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
Page 11
REF FPSD-4158
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).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 12