Labour Disputes
Texto da decisão
REF 21-00155
Decision of the
Dispute Resolution Chamber
passed on 25 March 2021
regarding an employment-related dispute concerning the player Gregory Diranth Gomis
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Daan de Jong (the Netherlands), member
Alexandra Gomez Bruinewoud (Uruguay & the Netherlands), member
CLAIMANT:
Gregory Diranth Gomis, France
Represented by Salvatore Civale
RESPONDENT:
Al Sailiya SC, Qatar
Represented by Nilo Effori
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I.
FACTS OF THE CASE
1.
Following the execution of two previous contracts, the French player, Gregory Diranth
Gomis (hereinafter: the player or the Claimant) and the Qatari club Al Sailiya SC (hereinafter:
the club or the Respondent) signed on 1 July 2019 a third employment contract (hereinafter:
the contract), valid as from the same date until 30 June 2024.
2.
Schedule 1 of the contract provided as follows:
“1. The Contract has a total value of QR 5,670,000 (in words: Five million six hundred and
seventy thousand riyals).
2. Concerning the season 2019/2020 the Player shall receive from the Club the total
amounts as follows:
a. Signing-on fee (if applicable): QR 654,000 to be paid in 12 monthly instalments of each
QR 54,600 at the end of each Gregorian month for the period from 01/07/2019. Until
30/06/2020. The Player agrees and accepts that as per QFA Regulations no advance
payment of a signing-on fee is possible.
b. Monthly salary: QR 40,000 to be paid at the end of each Gregorian month for the period
from 01/07/2019 until 30/06/2020.
3. Concerning the season 2020/2021 (if applicable) the Player shall receive from the Club
the total amounts as follows:
a. Signing-on fee (if applicable): QR 654,000 to be paid in 12 monthly instalments of each
QR 54,600 at the end of each Gregorian month for the period from 01/07/2020 until
30/06/2021. The Player agrees and accepts that as per QFA Regulations no advance
payment of a signing-on fee is possible.
b. Monthly salary: QR 40,000 to be paid at the end of each Gregorian month for the period
from 01/07/2020 until 30/06/2021.
4. Concerning the season 2021/2022 (if applicable) the Player shall receive from the Club
the total amounts as follows:
a. Signing-on fee (if applicable): QR 654,000 to be paid in 12 monthly instalments of each
QR 54,600 at the end of each Gregorian month for the period from 01/07/2021 until
30/06/2022. The Player agrees and accepts that as per QFA Regulations no advance
payment of a signing-on fee is possible.
b. Monthly salary: QR 40,000 to be paid at the end of each Gregorian month for the period
from 01/07/2021 until 30/06/2022.
5. Concerning the season 2022/2023 (if applicable) the Player shall receive from the Club
the total amounts as follows:
a. Signing-on fee (if applicable): QR 654,000 to be paid in 12 monthly instalments of each
QR 54,600 at the end of each Gregorian month for the period from 01/07/2022 until
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30/06/2023. The Player agrees and accepts that as per QFA Regulations no advance
payment of a signing-on fee is possible.
b. Monthly salary: QR 40,000 to be paid at the end of each Gregorian month for the period
from 01/07/2022 until 30/06/2023.
6. Concerning the season 2023/2024 (if applicable) the Player shall receive from the Club
the total amounts as follows:
a. Signing-on fee (if applicable): QR 654,000 to be paid in 12 monthly instalments of each
QR 54,600 at the end of each Gregorian month for the period from 01/07/2023 until
30/06/2024. The Player agrees and accepts that as per QFA Regulations no advance
payment of a signing-on fee is possible.
b. Monthly salary: QR 40,000 to be paid at the end of each Gregorian month for the period
from 01/07/2023 until 30/06/2024.
7. Bonuses
a. QLS Championship;
b. Qatar Cup Championship;
c. H.H The Amir’s Cup; d. AFC Champions League Championship; The aforesaid bonuses, if
applicable, are payable at the end of each sporting season, i.e. 30 June of each year of the
season when the event giving rise to the bonuses occurred”.
3.
Clause 9 of the contract provided as follows: “The Player’s income refers to net amounts in
the State of Qatar. Any taxes, social costs, contributions or any other amounts the Player
may need to pay in the country of his residence or any other country are to be borne by the
Player and the Club insofar shall not be obliged to pay any additional amounts to the player
as those agreed upon in this Contract”.
4.
On 29 January 2019, the club undertook via a letter to the player to pay him QR 2,000,000
as overdue payables.
5.
On 15 May 2019, the parties executed a settlement agreement by means of which the club
undertook to pay QR 2,000,000 by 30 June 2020 (hereinafter: the settlement agreement).
6.
On 22 December 2020, the player put the club in default QR 2,283,500, broken down as
follows, and granting a deadline of 15 days for the club to cure the breach:
a. Salaries and sign-on fees from September to November 2020;
b. QR 2,000,000 as per the settlement agreement;
7.
On 11 January 2021, the player terminated the contract in writing.
8.
By the time this decision was passed, the player had not found any new employment.
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9.
On 26 January 2021, the Claimant filed the claim at hand before FIFA. He deems that he
terminated the contract with just cause and seeks payment of outstanding remuneration
and compensation for breach of contract as follows:
“(a) Order the Respondent to pay the Claimant the overdues in the amount of 2,378,000
QR NET calculated as follows:
- Overdue concerning the season 2019/2020 in the amount of QR 2,000,000 which was
postponed to 30 June 2020;
- Salary of September 2020 of QR 40,000 plus the sign on fee installment of September
2020 of 54,500 QR for a total due for the month of September of QR 94,500;
- Salary of October 2020 of QR 40,000 plus the sign on fee installment of September 2020
of 54,500 QR for a total due for the month of October of QR 94,500;
- Salary of November 2020 of QR 40,000 plus the sign on fee installment of September
2020 of 54,500 QR for a total due for the month of November of QR 94,500;
- Salary of December 2020 of QR 40,000 plus the sign on fee installment of September
2020 of 54,500 QR for a total due for the month of December of QR 94,500.
(b)Order the Respondent to pay the Claimant the compensation for breach of contract in
the amount of QR 3,969,000 NET equals to the remaining value of the contract (42 months)
x the monthly due of QR 94,500;
(c) Order the Club to pay an interest of 5% on each of the above amounts due to the Player,
calculated as follows:
Overdues
- starting from 30 June 2020 as for the amount of QR 2,000,000; - starting from 30
September 2020 as for the amount of QR 94,500;
- starting from 31 October 2020 as for the amount of QR 94,500;
- starting from 30 November 2020 as for the amount of QR 94,500;
- starting from 31 December 2020 as for the amount of QR 94,500;
Compensation
- starting from 11 January 2021 (or 26 January 2021) as for the amount of QR 3,969,000.
(d)Apply the measures and sporting sanctions established by the FIFA Regulations on Status
and Transfer of Players, namely the ban of 2 transfer windows.
(e) Apply any other measures it considers necessary in decision of the case at stake”.
10.
The Respondent did not reply to the claim.
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II.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
11.
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 26 January 2021 and submitted
for decision on 25 March 2021. Taking into account the wording of art. 21 of the January
2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
12.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and
b) of the Regulations on the Status and Transfer of Players (edition February 2021), 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 French player
and a Qatari club.
13.
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 Player (edition February 2021), and
considering that the present claim was lodged on 26 January 2021, the January 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
14.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
15.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
16.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC emphasised that in the following considerations
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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
17.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the player filed the claim at hand seeking payment of
outstanding remuneration and compensation for breach of contract.
18.
Subsequently, the Chamber took into account that the Respondent, for its part, failed to
present its response to the claim of the Claimant, in spite of having been invited to do so.
In this way, the DRC considered that the Respondent renounced its right to defence and
thus accepted the allegations of the Claimant.
19.
Furthermore, as a consequence of the aforementioned consideration, the members of the
Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules, they shall
take a decision upon the basis of the documents on file, in other words, upon the
statements and documents presented by the Claimant.
20.
To this end, the DRC noted that the player, who filed evidence of the contract concluded
with the club, put the latter in default on 22 December 2020, requesting payment of the
following, evidence of which was also made available to the Chamber:
a. Salaries and sign-on fees from September to November 2020;
b. QR 2,000,000 as per the settlement agreement.
21.
The Chamber additionally noted that the player granted a deadline of 15 days for the club
to cure the breach, to no avail, leading thereafter to the termination of the contract at the
player’s initiative on 11 January 2021.
22.
Consequently, the Chamber found that the player duly met the criteria found in article
14bis of the Regulations, especially because at least two monthly salaries had been
outstanding. It followed that the player had just cause to terminate the contract and the
player shall endure the consequences that follow.
ii. Consequences
23.
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.
24.
The Chamber observed that the outstanding remuneration at the time of termination
comprised of QAR 378,000, equivalent to the salaries between September 2020 until
December 2020 à QAR 94,500 each. The Chamber furthermore noted that QAR 2,000,000
were due in accordance with the settlement agreement.
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25.
As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided 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. QAR
2,378,000.
26.
In addition, taking into consideration the player’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard, the Chamber decided to award the player
interest at the rate of 5% p.a. on the outstanding amounts as from one day after the their
due dates until the date of effective payment.
27.
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.
28.
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.
29.
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.
30.
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
until its expiration date. Consequently, the Chamber concluded that the amount of QAR
3,969,000 serves as the basis for the determination of the amount of compensation for
breach of contract. Such amount is broken down as follows: (a) QAR 567,000
corresponding to six months for the remainder of the season 2020/2021; (b) QAR
1,134,000 for the season 2021/2022; (c) QAR 1,134,000 for the season 2022/2023; and
(d) QAR 1,134,000 for the season 2023/2024.
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31.
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.
32.
In fact, the player could not find new employment; hence, there is no mitigation to be
considered in line with article 17 of the Regulations.
33.
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 QAR
3,969,000 as compensation for breach of contract, which was to be considered a
reasonable and justified amount in the present matter.
34.
Lastly, taking into consideration the player’s request as well as the constant practice of the
Dispute Resolution Chamber in this regard, the Chamber decided to award the player
interest on said compensation at the rate of 5% p.a. as of the date of claim until the date
of effective payment.
iii. Compliance with monetary decisions
35.
Finally, taking into account the applicable Regulations, the Chamber referred to par. 1 lit.
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.
36.
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.
37.
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. 24bis par. 2, 4, and 7 of the Regulations.
38.
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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39.
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. 24bis par. 8
of the Regulations.
d.
Costs
40.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
41.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
42.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
III.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Gregory Diranth Gomis, is partially accepted.
2.
The Respondent, Al Sailiya SC, has to pay to the Claimant the following amounts:
a. QAR 2,000,000 net as outstanding remuneration plus 5% interest p.a. as from 1 July 2020
until the date of effective payment;
b. QAR 94,500 net as outstanding remuneration plus 5% interest p.a. as from 1 October
2020 until the date of effective payment;
c. QAR 94,500 net as outstanding remuneration plus 5% interest p.a. as from 1 November
2020 until the date of effective payment;
d. QAR 94,500 net as outstanding remuneration plus 5% interest p.a. as from 1 December
2020 until the date of effective payment;
e. QAR 94,500 net as outstanding remuneration plus 5% interest p.a. as from 1 January
2021 until the date of effective payment;
f. QAR 3,969,000 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 26 January 2021 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
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4.
Full payment (including all applicable interest) shall be made to the bank account set out in
the enclosed Bank Account Registration Form.
5.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid 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 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
paid by the end of the of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
7.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED 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) 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 20 of the Procedural Rules).
CONTACT INFORMATION:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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