Labour Disputes
Texto da decisão
REF FPSD-4594
Decision of the
Dispute Resolution Chamber
passed on 7 April 2022
regarding an employment-related dispute concerning the player Amoako
George
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Michele Colucci (Italy), member
Jerome Perlemuter (France), member
CLAIMANT:
Amoako George, Ghana
Represented by Mr Mouhammed Ammar Asfoud
RESPONDENT:
Al Ahly Club, Libya
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I.
Facts of the case
1.
On 6 September 2021, the Ghanaian player, Mr Amoako George (hereinafter: the player or
the Claimant), and the Libyan club, Ahly Club (hereinafter: the club or the Respondent),
concluded an employment contract (hereinafter: the contract), valid as from 15 September
2021 until the end of the season 2023 / 2024 in Libya (note: according to the information
displayed in TMS, it is foreseen that the relevant season will end on 31 May 2024).
2.
In accordance with clause 4 of the contract, the club undertook to pay to the player a total
fixed remuneration of USD 150,000, as follows:
During the season 2021/2022:
- USD 12,500 at the beginning of the season, i.e. by 1 August 2021, or by 15 September
2021, in casu;
- USD 2,083 as monthly salary;
- USD 12,500 at the end of the season, i.e. by 31 May 2022.
During the season 2022/2023:
- USD 12,500 at the beginning of the season, i.e. by 1 August 2022
- USD 2,083 as monthly salary;
- USD 12,500 at the end of the season, i.e. by 31 May 2023.
During the season 2023/2024:
- USD 12,500 at the beginning of the season, i.e. by 1 August 2023
- USD 2,083 as monthly salary;
- USD 12,500 at the end of the season, i.e. by 31 May 2024.
3.
By means of his letter dated 27 December 2021, the player informed FIFA that the club
refused to return the player’s passport and requested for FIFA’s mediation in the situation.
4.
By means of his correspondence of 12 January 2022, the player reiterated his previous
statement, adding that he was “detained and cannot return to his country” and that the
club’s actions were violating the player’s human rights.
5.
On 19 January 2022, FIFA sent a correspondence to both, the club and the Libyan FA,
requesting the club to provide comments as to the situation explained by the player during
the following 48 hours.
6.
By means of its correspondence dated 21 January 2022, the club replied stating that all
players’ passports of foreign players are held by the club in order to complete the visa and
residency procedures. In addition, the club argued that an important match would be played
on the following day, on Saturday 22 January 2022 and that, once the said game was
finished, the player -as well as the other players of the team- would receive his passport, since
a 2 weeks’ holidays would start as from that date. Furthermore, the club explained that it
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offered the player to give him his passport on 20 January 2022, provided that the player
signed a document (note: no further information provided by the club as to the content of
the said document), but the player refused to sign it.
7.
By means of his letter of 21 January 2022, the player reiterated his previous explanations,
pointing out that the club had not provided him with his passport and highlighting the
situation of fear he was facing.
8.
According to a document dated 22 January 2022, the player acknowledged having received
his passport from the club.
9.
On 26 January 2022, the parties signed a termination agreement, which states that the player
has received all his moneys from the club -concerning both past and future financial
entitlements- and that the parties, thereby, agree close any “complaint” between the parties,
since no party has any pending commitment towards the other.
10. By means of his letter dated 1 February 2022, the player alleged, inter alia, the following:
“We inform you that the settlement that took place between Ghanaian player Amoako
George and Al-Ahly Benghazi Club of Libya is null and has no legal value. It took place under
psychological pressure, physical coercion and extreme fear that the player George was
exposed to”.
11. The player has remained unemployed following the termination of the contract
II. Proceedings before FIFA
a. Position of the Claimant
12. On 3 February 2022, the player lodged a claim against the club before FIFA, requesting to be
awarded outstanding remuneration and compensation for breach of contract in the total
amount of USD 1,150,000 (note: no interest requested), broken down by the Claimant as
follows:
- USD 140,000 corresponding to the full value of the contract (USD 150,000) minus the
amount of USD 10,000 that the Claimant received from the Respondent as termination fee;
- USD 1,000,000 as damages.
13. In his claim, the Claimant explained that the club has not paid any of the remuneration due
to the player as per the contract, which led the player to unilaterally terminate the contract
on 29 January 2021, after 4 months and a half of rendering his services for the club without
receiving any remuneration from the club.
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14. In connection with the termination agreement signed by the parties, the Claimant claims that
it was concluded under duress, since the club opposed to handing over the player’s passport
-which was necessary for the player to return to his home country- unless the player signed
the said document, accepting the receipt of USD 10,000 as termination fee. The player argued
that he had no alternative but to sign the said termination agreement, since he was facing a
situation of vulnerability. Thus, the Claimant requests the Chamber to consider that the
termination agreement concluded between the parties is null and void, allowing the Claimant
to request the amounts due to him under the contract, minus the amount of USD 10,000
that the Claimant acknowledges having receipt from the club as per the termination
agreement.
15. In addition, the Claimant argues that due to the situation of duress, he felt “intimidated and
frightened” and, on those grounds, the Claimant requests to be granted a compensation for
damages in the amount of USD 1,000,000.
b. Position of the Respondent
16. In its reply, the Respondent argued that the parties amicably terminated their contractual
relationship on 26 January 2022 as per the terms of the termination agreement and that, on
that very same date, the player received his passport.
17. In addition, the club argues that it also provided the player with the flight ticket to return to
his home country.
18. As to the argumentation of the player, the club held that it is “always committed to its
contractual relationship and [it does] not know why the player or his agent continues this
misleading”.
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 01 December 2021 and submitted for
decision on 3 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 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 lit. b) of the
Regulations on the Status and Transfer of Players (August 2021 edition), the Dispute
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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 Libyan 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 2 February 2022 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).
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 wished to recall that the Claimant requests to be awarded outstanding remuneration,
compensation for breach of contract and a compensation for damages from the Respondent
in the total amount of USD 1,150,000.
25. The DRC further noted that, in his claim, the Claimant stresses that he suffered a situation of
great vulnerability as a consequence of the actions of the club, which: absolutely failed to pay
his remuneration, refused to give him his passport and forced him to conclude a termination
agreement against payment of an amount of USD 10,000, thereby stating that the parties
amicably terminated their contractual relationship without the club owing any amount to the
player.
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26. On its part, noted the Chamber, the club referred to the termination agreement signed on
26 January 2022 and held that no further amount is due to the player, since the club has
always been “committed” to respecting his contractual obligations. As to the situation
explained by the player concerning his passport, the club simply argued that it retains the
passports of all foreign players in order to provide them with the necessary residence and
working permits.
27. In this context, having remained undisputed that the parties concluded the mutual
termination agreement, a thorough analysis of the circumstances surrounding the dispute at
hand must be made in order to determine whether the player still holds his financial credits
against the club.
28. In this respect, it must be noted that the player acknowledged having signed the mutual
termination agreement, but under duress. In order to assess whether the argumentation of
the player can or cannot be upheld, all the circumstances of the present case need to be
considered. Thus, not only the general principle of law, pacta sunt servanda, shall be taken
into account, but also the behavior of the parties during the contractual relationship and the
different particularities that led to the conclusion of the termination agreement (the principle
of reality).
29. First of all, it should be noted that it remained uncontested that the club completely failed to
pay the player’s salaries throughout the duration of the contract, i.e. as from 15 September
2021 until 26 January 2022, thus -de facto- the player remained unpaid for almost 4 months
and a half.
30. As to the holding of the player’s passport, it shall be noted that no contractual provision
foresees the club’s entitlement or the player’s acceptance to the club’s retention of the
player’s passport, neither for any administrative reason related to the player’s visa(s) nor for
any other reason. What is more, the DRC underscored that -in the absence of any agreement
of the parties in this regard and considering that the player was requesting to be provided his
passport more than 4 months after the date on which the player entered Libya-, the player
had the right to be provided his passport at his request. It is important to highlight that, in
principle, it is the right of every player to be in possession of their passport -as part of their
personality rights-, a club not being entitled to withhold it against the player’s will, which
cannot be considered but as an abusive conduct from the Respondent.
31. In this respect, the behaviour of the parties needs to be analysed. It shall be noted that both,
prior and after the conclusion of the termination agreement, the player sent numerous
communications to FIFA, highlighting the situation of fear and vulnerability the player was
facing as a consequence of the attitude of the club, which failed to pay his remuneration and
allegedly forced him to sign the termination agreement, thereby waiving his right to receive
any further remuneration as per the contract.
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32. Furthermore, It needs to be noted that, on its part, the club firstly acknowledged not having
given his passport to the player, since he allegedly refused to sign a certain document and
then simply held that the parties amicably terminated the contract, no further claims being
pending from the player’s side.
33. In view of all of the above, the DRC determined that the termination agreement needs to be
considered null and void, since -in view of the positions of the parties and the abundant
evidence on file- the DRC found a comfortable satisfaction in upholding the argument of the
player that he only signed the said termination agreement in order to receive his passport and
return to his home country. Thus, since the consent of the player to be bound by the said
termination agreement was not freely given, the Chamber unanimously concluded that the
termination agreement shall produce no effects and must be disregarded.
34. Thus, as considered null and void, the terms of the termination agreement are to be
considered as not agreed by the parties. Hence, the DRC determined that the parties
continued to be contractually engaged, at least from a formalistic point of view, until the date
on which the Claimant lodged his claim before FIFA.
35. In accordance with the long-standing jurisprudence of the DRC, a contractual relationship
that has not been formally terminated will end, in any case, on the date on which the
Claimant lodges a claim against the Respondent. Thus, it is to be presumed that the Claimant
unilaterally terminated the contract on 3 February 2022.
36. In this point, it needs to be recalled that the player remained unpaid during the full duration
of the contract, only receiving an amount of USD 10,000 as termination fee on 26 January
2022. Consequently, in view of: the lack of payment of his remuneration during more than
4 months, the situation of vulnerability and fear suffered by the player due to his lack of
financial resources and the club refusing to handing over his passport and the club having
forced the player to sign a termination agreement in clear detriment of the player’s financial
rights, the DRC decided that the player terminated the contract with just cause on 3 February
2022 ex. art. 14 of the Regulations and is, therefore, not only entitled to receive the
outstanding remuneration due to him at the date of the termination, but also to receive a
compensation for breach of contract.
37. As a final point as to the behaviour of the Respondent, the DRC wished to stress that the
conduct of the latter must be considered unacceptable and that the present file has been
transmitted to the Disciplinary Committee for its analysis and further action.
ii. Consequences
38. 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.
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39. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, amount to USD 21,873.5 (lump
sum due by 15 September 2021, the salary of September 2021 (15 days) and the salaries due
between October 2021 and January 2022).
40. 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, i.e. USD 21,873.5.
41. 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.
42. 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.
43. 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.
44. 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 USD 128,126.5 serves as the basis for the determination of the amount
of compensation for breach of contract.
45. 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
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compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
46. In this respect, the Chamber noted that the player remained unemployed and, hence, could
not mitigate his damages in the sense provided by art. 17 of the Regulations. However, the
Chamber noted that the club paid a sum of USD 10,000 to the player as termination fee,
which has been confirmed by the Claimant, amount that shall be considered.
47. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of USD
118,126.5 to the player, which is to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
48. Concerning the Claimant’s claim to be awarded damages, the DRC determined that the
Claimant is not entitled to any compensation for “damages”, in view of the lack of legal basis
that would support any such entitlement.
49. Lastly, taking into consideration that the player did not request to be awarded any default
interest, neither in connection with the outstanding remuneration requested, nor in relation
to the compensation for breach of contract requested, no default interest can be awarded to
the Claimant in accordance with the legal principle: ne ultra petita.
iii. Compliance with monetary decisions
50. 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.
51. 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.
52. 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.
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53. 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.
54. 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
55. 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.
56. 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.
57. Lastly, the DRC concluded its 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, Amoako George, is partially accepted.
2.
The Respondent, Al Ahly Club, has to pay to the Claimant, the following amount:
- USD 21,873.5 as outstanding remuneration;
- USD 118,126.5.as compensation for breach of contract.
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 the ban shall
be of 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 article 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
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
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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