Labour Disputes
Texto da decisão
Decision of the
DRC Judge
passed via videoconference, on 12 June 2020,
regarding an employment-related dispute concerning the player Yves Ekwalla
HERMANN
BY:
Daan de Jong (Netherlands), DRC Judge
CLAIMANT:
Yves Ekwalla HERMANN, Cameroon
Represented by Koray Akalp
RESPONDENT:
AL-ZAWRA’A SPORT CLUB, Iraq
Represented by Nezar Ahmed
REF 19-01307
Contractual basis
1.
On 25 January 2019, the Cameroonian player, Yves Ekwalla Hermann (hereinafter: the Claimant
or the player), and the Iraqi club, Al-Zawra’a Sport Club (hereinafter: the Respondent or the club)
allegedly concluded an employment contract (hereinafter: “the alleged contract”) valid as from
24 January 2019 until 1 July 2019.
2.
The alleged contract, inter alia, foresaw the following financial conditions:
“The two sides agreed on the following:
1. Distracted first party second party (100,000) $ (ONE hundred thousand DOLLARS) type. As
the value of the contract paid in three instalments scheduled in agreement with the parties.
30% upon signature, 30% as monthly salaries, and 40% at the end of the seasons (sic).”
3.
According to art. 15 of the alleged contract, “Iraqi courts are competent to resolve disputes that
arise between the parties”.
4.
According to the information available in the Transfer Matching System (hereinafter: TMS), there
is no transfer instruction inputted.
5.
According to the information available in TMS, the TMS manager of the Respondent is Mr
Abdalrahman Rasheed Kaream and is official email address is [email protected].
Chain of events
6.
On 11 February 2019, the Claimant, “due to the failure of the Respondent to register the
Claimant”, put the Respondent in default by correspondence sent to the email address
[email protected].
7.
In particular, the Claimant requested the following: “(i) [to] receive the total remuneration
stipulated in the above-mentioned employment contract and to (ii) train and play football for the
Club”.
8.
The Claimant reiterated his default on 4 March 2019 by correspondence sent to the email address
[email protected].
9.
In this respect, the Claimant stated the following:
“Please be aware that the employment contract signed between the parties, valid from 24
January 2019 until 1 July 2019 (…) IS STILL VALID AND IN FORCE.
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Therefore, [the Claimant] still has the right to (i) receive the total remuneration stipulated in the
above-mentioned employment contract and to (ii) train and play football for [the Respondent].
(…)
Considering that the total value of the signed employment contract, [the Claimant] is entitled to
30% of his salary upon signature of the contract, 30% as monthly salaries and 40% at the end
of the season.
Considering that the total value of the employment contract is USD 100,000 and that the
employment contract entered into force on 24 January 2019, the payment of USD 30,000 was
also due and payable to [the Claimant] on the same date (i.e. 24 January 2019).
In addition, on a pro-rata basis, as of today, [the Claimant] is entitled to his January 2019 and
February 2019 salaries which is calculated to be USD 6,835. However, until today the abovementioned payments still remain unpaid to [the Claimant].
Therefore, this email is served to you as an official warning, in accordance with article 14is of the
FIFA Regulations on the Status and Transfer of Players that your club is hereby provided 15 days
from the date of this e-mail to pay the outstanding remuneration of [the Claimant] (i.e. USD
36,835).”
10. The Claimant terminated the alleged contract on 20 March 2019 in view of the absence of
reaction from the club.
Requests of the parties
11. On 18 June 2019, the Claimant lodged a claim in front of FIFA and submitted the following
requests for relief:
- “To accept the claims of [the] player”;
- “To condemn the Respondent (…) to pay in favour of the Claimant the total unpaid and
overdue salary payments of Net USD 36,835 along with interest rate of 5% p.a. starting
from the below due dates until the date of effective payment:
o Net USD 30,000 on 25 January 2019;
o Net USD 1,519 on 1 February 2019;
o Net USD 5,316 on 1 March 2019”
- “To condemn the Respondent (…) to pay in favour of the Claimant Net USD 63,165 as
compensation for the breach of contract along with its interest starting from the date of
the present claim, in accordance with article 17 para. 1 of the Regulations on the Status
and Transfer of Players and FIFA’s commentary on the Regulations.”
12. The Respondent primarily requested the rejection of the claim of the Claimant.
13. Alternatively, in case the alleged contract is considered as genuine, the Respondent requested
FIFA to determine that the claim is inadmissible.
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REF 19-01307
Position of the parties
a. Admissibility of the claim
14. The Claimant deemed that FIFA is competent to entertain his claim on the basis of art. 22 lit. a)
of the FIFA Regulations on the Status and Transfer of Players, as it concerns a dispute between a
player and a club “in relation to the maintenance of contractual stability (…) where there has
been an ITC request and a claim from an interested party in relation to said ITC request, in
particular regarding the issue of the ITC, sporting sanctions or compensation fro breach of
contract.”
15. The Respondent, besides contesting the authenticity and validity of the contract, also argued that
should the alleged contract be deemed valid and binding, it contained a clear and specific
jurisdiction clause in favour of the Iraqi national courts and therefore FIFA should not be
competent to hear the contractual dispute.
16. In fact, the Respondent underlined that according to clause 15. “Iraqi courts are competent to
resolve disputes that arise between the parties”. In particular, the Respondent referred to the
DRC decision dated 28 January 2016 in which the Chamber decided that the courts of Iraq were
competent on the basis of the exact same wording.
b.
As to the substance
17. According to the Claimant, “the Club stayed silent and did not take the necessary steps before
the Iraq Football Federation to register the Claimant as a professional football player according
to the Employment contract”.
18. In this context, on 27 January 2019, he allegedly requested the Respondent to proceed with the
player’s registration before the Iraqi Football Federation (hereinafter: the IFF).
19. The Claimant further indicated “that according to the signed Employment Contract, our Client is
entitled to 30% of his salary upon signature of the contract”.
20. According to the Claimant, “despite the request of the Claimant the Respondent has failed to
fulfil its obligations and did not register the Claimant and the Employment Contract before the
Iraq Football Federation”. Having said this, the Claimant further held that “the Respondent did
not even invite the Claimant to Iraq to train and to enter medical examination”.
21. In view of the above, the Claimant indicated that it terminated the alleged contract on 20 March
2019.
22. In its reply to the claim the Respondent sustained that “the alleged employment contract attached
to claim as “Exhibit 2” is forged and as such the Respondent hereby formally contests the validity
of such employment contract”.
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REF 19-01307
23. In particular, the Respondent declared the following:
“In this respect, the Respondent’s position is simple. First, the Respondent denies concluding and
signing an employment contract with the Respondent. Second, the alleged employment contract
attached to the claim (…) is forged and as such the Respondent hereby formally contests the
validity of such employment contract. In fact, one fails to understand how such contract can be
signed considering that i) the Claimant never visited Iraq and ii) no encounter of any kind was
ever made between the Claimant and the Respondent. What is more, it defies common sense
that the Respondent would enter into an employment relationship with the Claimant only not to
request his ITC.”
24. In this context, in order to clarify the validity of the employment contract, the FIFA administration
requested to be provided with the original version of the contested document by courier.
25. In its replica, the Claimant held “that he does not have the original version of the employment
contract dated 24 January 2019 (attached to the claim) since this document was signed via email
exchange, which was initiated by the Respondent”, via the address [email protected]. In this
regard, the Claimant firstly sustained that “the original document was supposed to be signed
when the Claimant would arrive in Iraq. However, this never took place because of the failure of
the Respondent to honour the agreement and to invite the Claimant to Iraq, despite the notices
sent to the Club by the undersigned on behalf of the Claimant”.
26. Moreover, in support of his allegations, the Claimant pointed out that “the background of the
signing phase of the employment contract via digital platforms is as follows:
1. On 24 January 2019, the Claimant has mandated Mr Abdul Rahman Khalifeh (…) and Mr
Elias Kharma to negotiate a contract with the Respondent. The mandate also stated that
the Claimant was also represented by Mr Ibe Onyekachu Michael.
2. Following the negotiations held between Mr Khalifeh as well as Mr Karma and the
Respondent club during January 2019, Mr Abdel Rahman Abou Azad, the Respondent’s
press representative and translator, has sent phots of both pages of the employment
contract (containing the stamp and signature of the Respondent) from his phone number
(…) to Mr Khalifeh, via Whatsapp.
3. Mr Abdul Rahman Khalifeh immediately forwarded the two pages of the employment
contract (containing the stamp and signature of the Respondent) via e-mail to Mr Ibe
Onyekachu Michael (…)
4. On the same date, Mr Ibe Onyekachu Michael has sent the agreement to the Claimant via
e-mail and on the next date (i.e. 25 January 2019) the document was countersigned by the
Claimant and was sent back to Mr Ibe Onyekachu Michael via e-mail.
5. On the same date Mr Ibe Onyekachu Michael has sent the countersigned agreement to Mr
Elias Kharma via e-mail.
6. At the same time, Mr Abdul Rahman Khalifeh (…) has requested from Mr Abdel Rahman
Abou Azad (…) the e-mail address for forwarding the agreement for the attention of the
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REF 19-01307
Respondent. Mr Abdel Rahman Abou Azad has provided the following e-mail address:
[email protected]
7. Finally, on 25 January 2019, Mr Elias Kharma has forwarded the countersigned employment
contract to the e-mail address ([email protected]) provided by Mr Abdel Rahman Abou
Azad.”
27. Lastly, the Claimant underlined that the Respondent did not reply to any of the e-mails sent on
11 February and 4 March 2019. In this context, as per the Claimant, “if in fact the employment
agreement entered between the Parties was forged and not valid, the Respondent could have
easily challenged this in its reply. Instead, the Respondent chose to remain silent and forced the
Claimant to unilaterally terminate the employment contract with just cause and to initiate the
present legal action”.
28. In its duplica, the Respondent mainly reiterated that the alleged contract was not valid and
binding and has been forged. The Respondent highlighted that it was electronically signed, and
that it was not a written and signed by hand agreement. In this respect, the Respondent claimed
that the DRC does not generally take into account document that are not in their original form
and signed by hand.
29. Then, the Respondent stated that Mr Abdel Rahman Abou Azad, who allegedly represented the
Respondent as a press officer, is not known to the Respondent, and is neither a club official, an
authorized signatory nor a third party duly mandated to act on its behalf.
30. What is more, the Respondent pointed out that the chain of events presented by the Claimant,
supported by screenshots of WhatsApp conversations (which according to the Respondent are
generally considered by courts and by the DRC of low value) does not permit to conclude that
the Respondent has negotiated and signed the alleged contract. The Respondent pointed out
that the names of the contacts in the relevant WhatsApp conversations were changed in order
to fake the alleged sending of the contract by the Respondent to the Claimant, and that is seems
inconceivable that within less than 24 hours, 5 individuals of 5 different nationalities working in
5 different countries on the alleged deal managed to negotiate and conclude an employment
contract.
31. Finally, the Respondent stated that the signature of its representative at the bottom of the
contract was not genuine as it is completely different from the “regular” signature of this
individual. The Respondent provided a comparison of the signatures – see below:
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REF 19-01307
Abstract of the Respondent’s duplica
32. In view of all the above, the Respondent indicated that when the authenticity of a contract is
disputed the DRC must be convinced beyond reasonable doubt that the contract has been agreed
and signed by both parties. As the Claimant failed to provide any corroborative evidence, the
Respondent concluded that the claim should be rejected.
1.
First of all, the Dispute Resolution Chamber judge (hereinafter: the DRC judge) analysed whether
he was competent to deal with the case at hand. In this respect, the DRC judge took note that
the present matter was submitted to FIFA on 18 June 2019, and was submitted to the DRC judge
for decision on 12 June 2020. Consequently, the 2019 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 DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players (edition June 2020), the DRC judge is in
principle competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Cameroonian player and an Iraqi club.
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3.
However, the DRC judge observed that the club had contested the competence of FIFA’s deciding
bodies on the basis of art. 15 of the alleged contract, according to which “Iraqi courts are
competent to resolve disputes that arise between the parties”.
4.
On the other hand, the DRC judge noted that the Claimant insisted on the competence of the
FIFA DRC to adjudicate on the claim he lodged against the Respondent.
5.
As a preliminary remark, the DRC judge underlined that the first requirement that needs to be
met in order to establish that another organ than the DRC is competent to settle an employmentrelated dispute between a club and a player of an international dimension, is that the jurisdiction
of the relevant national arbitration tribunal or national court derives from a clear reference in the
agreement. What is more, the DRC judge recalled that, in consistency with the jurisprudence of
the DRC in this regard, it would declare himself competent in instances where the parties have
not made a clear and unambiguous reference to the exclusive jurisdiction of their choice.
6.
Although emphasising that this principle is imbedded in the jurisprudence of the Dispute
Resolution Chamber and the Player’s Status Committee, the DRC judge was keen to point out
that each dispute had to be assessed on its own merits.
7.
Having examined the relevant provision, the DRC judge determined that art. 15 does not
constitute an clear and specific clause in favour of the exclusive jurisdiction of Iraqi courts, since
it established their competence without excluding the jurisdiction of other dispute resolution
organs such as the DRC or the Court of Arbitration for Sports.
8.
In view of all the above, the DRC judge established that it could not be established with certainty
that the wording of art. 15 would permit to derive from the DRC jurisprudence in respect of
jurisdiction clauses as established in art. 5 above.
9.
As such, the DRC judge concluded that the Respondent’s objection to the competence of FIFA to
deal with the present matter has to be rejected and that the DRC judge is competent, on the
basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the
present matter as to the substance.
10. Subsequently, the DRC judge analysed which regulations should be applicable as to the substance
of the matter. In this respect, the DRC judge confirmed that in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (June 2020 edition), and
considering that the claim was lodged on 18 June 2019, the June 2019 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as
to the substance.
11. His competence and the applicable regulations having been established, the DRC judge entered
into the substance of the matter. In this respect, the DRC judge started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation submitted by the
parties. However, the DRC judge emphasised that in the following considerations it will refer only
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to the facts, arguments and documentary evidence, which he considered pertinent for the
assessment of the matter at hand. In particular, the DRC judge recalled that, in accordance with
art. 6 par. 3 of Annex 3 of the Regulations, FIFA may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated or
contained in the TMS.
12. Having said this, the DRC judge proceeded with an analysis of the circumstances surrounding the
present matter, the parties’ arguments as well the documentation on file, bearing in mind art.
12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the
basis of an alleged fact shall carry the burden of proof.
13. The DRC judge acknowledged that the player has alleged that he and the club signed an
employment contract valid as from 24 January 2019 until 1 July 2019. In this respect, the DRC
judge remarked that the alleged contract foresaw fixed monetary benefits, including but not
limited to a signing-on fee and a monthly salary (cf. I.2 above).
14. Then, the DRC judge observed that on 11 February 2019 and 4 March 2019, the player had put
the club in default regarding the non-payment of the remuneration foreseen in the alleged
contract, as well as to the fact that he was yet to be registered by and with the club (cf. I.5 to 8).
15. Furthermore, the DRC judge noted that in view of the absence of reply to his notices, the player
unilaterally terminated the contract on 20 March 2019 (cf. I.9 above). In this respect, the DRC
judge acknowledged that the Claimant is arguing that he had just cause to terminate the contract
based on the absence of payment of his fixed remuneration allegedly due to him at the time of
termination (i.e. USD 36,835 corresponding to the signing-on fee allegedly due on 25 January
2019 as well as the salaries of February and March 2019 pro-rata), and is claiming said
outstanding remuneration as well as compensation for breach of contract.
16. On the other hand, the DRC judge observed that the Respondent had denied the existence of a
valid and binding employment contract between the parties. In fact, the DRC judge remarked
that the Respondent had declared that the alleged contract was never signed by any of its
authorised representative, and that it had been forged.
17. In this context, the DRC judge determined that the main issue at stake surrounded the validity of
the alleged contract. Recalling the jurisprudence of the Dispute Resolution Chamber concerning
forgery allegations, the DRC judge emphasised that the DRC is not competent to decide on issues
of criminal nature such as the alleged forgery of documents.
18. Having said that, the DRC judge also recalled that, in line with the general practice of the DRC,
he could however use all the evidence at his disposal in order to determine whether it could be
established that the parties indeed entered into a valid and binding employment relationship or
not. The DRC judge insisted that for matters where a party is denying the authenticity of a
contract, the party alleging the validity of the contract shall meet the burden of proving “beyond
any reasonable doubt” that such relationship exists.
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19. In other words, the DRC judge emphasised that he was required to determine if the Claimant had
managed to prove beyond any reasonable doubt that he in fact had concluded a valid
employment contract with the club or not.
20. Having thoroughly analysed the submissions and behaviour of the parties, the DRC judge first
pointed out that no transfer instruction had been entered in TMS with respect to the registration
of the player with the Respondent.
21. The DRC judge underlined that the provisions of art. 1, par. 5 of Annexe 3 of the Regulations,
according to which “the use of TMS is a mandatory step for all international transfers of
professional and amateur players (both male and female) within the scope of eleven-a-side
football, and any registration of such a player without the use of TMS will be deemed invalid”,
were unequivocal, and was of the opinion that the absence of any indication of an attempted
registration in TMS was curious in view of the allegations made by the Claimant.
22. Then, the DRC judge remarked that the Claimant was not in a position to provide with an original
copy of the alleged contract, but argued that the alleged contract had been exchanged by email.
23. Nevertheless, the DRC judge paid particular attention to the argumentation of the club concerning
the signature of the Respondent’s president (cf. I. 30 above), and, having compared the signature
of the Respondent’s president in the power of attorney and the signature of the Respondent’s
president in the alleged contract, the DRC judge observed that, to a layman, these two signatures
were significantly different.
24. As to the chain of events that led to the conclusion of the alleged contract as presented by the
Claimant, the DRC judge noted that the alleged negotiations started upon the initiative of the
player, who mandated three intermediaries to negotiate with the club.
25. The DRC judge acknowledged that these intermediaries claimed to have been in contact with Mr
Abdel Rahman Abou Azad, the alleged “press representative and translator” of the club. In this
regard, the DRC judge duly noted that there was no evidence of any contact made by the player
and/or any of his representatives with an actual club official (i.e. president, manager, member of
board) and/or an authorized representative of the club (i.e. duly mandated agent).
26. In this respect, the DRC judge emphasised that, in principle, it cannot be considered that a party
in good faith considers that a “press representative and translator” – without the appropriate
mandate of any club official – should be authorised to negotiate and conclude employment
contracts on behalf of a club.
27. What is more, the DRC observed noted that the Respondent denied having any relationship with
Mr Abdel Rahman Abou Azad, and that the Claimant failed to provide substantial evidence of
Mr Abdel Rahman Abou Azad’s professional link to the club.
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28. In particular, the DRC judge noted that (1) the alleged contract was only sent by the alleged club
representative to the player’s intermediaries via a private mobile number, (2) that the contract
countersigned by the player was sent to the email address [email protected], which is indeed
the email of the TMS manager of the club in TMS, Mr Abdalrahman Rasheed Kaream and not
Mr Abdel Rahman Abou Azad, but that there is no conclusive evidence that any correspondence
was in fact received from [email protected] (or any other official email of the club).
29. In view of the above, the DRC judge determined that it could not be established that the player
and/or his representatives had negotiated with a club official of the Respondent and/or any
individual authorized to conduct contractual negotiations and/or concluded contracts on its
behalf.
30. Therefore, the DRC judge concluded that the Claimant failed to prove beyond reasonable doubt
that he and the Respondent had concluded a valid and binding employment relationship.
31. As a consequence, the DRC judge rejected the claim of the Claimant.
III.
1.
The claim of the Claimant, Yves Ekwalla Hermann, is admissible.
2.
The claim of the Claimant is rejected.
For the DRC Judge:
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:
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
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