Labour Disputes
Texto da decisão
REF. FPSD-10959
Decision of the
Dispute Resolution Chamber
passed on 15 November 2023
regarding an employment-related dispute concerning
the player Imoro Ibrahim
BY:
Lívia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman
Dana MOHAMED AL-NOAIMI (Qatar), member
Stefano SARTORI (Italy), member
CLAIMANT/COUNTER-RESPONDENT:
Club Al Hilal KH, Sudan
Represented by Pedro Macieirinha
RESPONDENT/COUNTERCLAIMANT:
Imoro Ibrahim, Ghana
Represented by Antas da Cunha e Associados
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REF. FPSD-10959
I. Facts of the case
1.
On 3 August 2022, the Sudanese club Al Hilal (hereinafter: the Club or Claimant/CounterRespondent) and the Ghanian player Imoro Ibrahim (hereinafter: the Player or RespondentCounterclaimant) entered into an employment agreement (hereinafter: the Contract) valid
as from the same date until 2 August 2027.
2.
In accordance with Contract, the Club undertook to pay to the Player inter alia a monthly
salary of USD 4,000 net plus an additional amount of USD 400 net as housing allowance
each month.
3.
By correspondence dated 6 June 2023, the Player put the Club in default of payment of USD
12,600 as outstanding remuneration, setting a time limit expiring on 21 June 2023 in order
to remedy the default.
4.
On 9 June 2023, the Club replied to the Player arguing that all bank accounts in Sudan had
been frozen due to the ongoing civil war. In this context, the Club promised the Player to
pay all his due salaries in cash, in the territory of Egypt and that a “camp” would have been
set on 20 June 2023.
5.
On the same date, the Player sent another letter to the Club, informing the latter of having
no intention to attend the training camp in Egypt in case the Club had not paid his overdue
salaries, while confirming the intention to terminate the Contract as per what previously
stated in his default letter dated 6 June 2023.
6.
By means of letter dated 21 June 2023, the Player notified the unilateral termination of the
Contract to the Club.
II. Proceedings before FIFA
7.
On 18 July 2023 the Club filed the claim at hand before FIFA. A brief summary of the position
of the parties is detailed in continuation.
a. Position of the Club
8.
In its claim, the Club argued having been not able to pay the Player’s salaries on time due
to the socio-political crisis suffered by Sudan because of the civil war and the subsequent
seizures of bank accounts.
9.
In this context, the Club stated that although it had promised the Player to pay the overdue
amounts on 20 June 2023 during the relevant Club’s training camp in Egypt, the Player
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REF. FPSD-10959
refused to travel and join the team in Egypt, hence it was materially impossible for the Club
to pay him.
10. In this respect, the Club was of the opinion that the Player acted in bad faith and terminated
the Contract without just cause, hence the Club held that it shall be compensated for the
said breach by the Player. Moreover, the Club argued that the Player did not respect the
period of grace granted in his default notice dated 6 June 2023 since he terminated the
Contract on 21 June 2023, namely within the 15th day.
11. In calculating the claimed compensation for breach of contract, the Club computed the
residual value of the Contract plus the non-amortized transfer fee previously paid to the
Player’s former club. In addition, the Club referred to 6 June 2023 as the date in which the
Player would have breached the Contract, thus the day as from which the relevant interest
on the compensation shall run.
12. Accordingly, the requests for relief of the Club were:
“(..) that the Claimant [the Club] did not breach the Contract, and that the non-payment of the
relevant amounts was due to a force majeure situation;
(..)that the Player breached the Contract, and then terminated it without just cause;
(..) that the Respondent [the Player] pay compensation for wrongful termination in the amount
of USD 510,431.50 + 5% p.a. as interests as of 6 June 2023 until the effective date of payment”.
b. Position of the Player
13. In his reply, the Player argued having acted in good faith by leaving time to the Club to
comply with its financial obligations in spite of the several months of delay.
14. Furthermore, the Player stated that although the Club had issued a communication about
a training camp in Egypt to be held on 20 June 2023, the same Club never provided the
Player with any further detail nor travel documents, hence the Player was not even able to
travel to Egypt.
15. In particular, according to the Player, the Club never communicated a specific date for the
exact payment of the overdue monies, nor it has ever clarified the reasons for the delay
during the months prior to the termination.
16. In this context, the Player alleged that the Club failed to pay three salaries corresponding
to the period between March and May 2023 as well as the relevant housing allowance;
hence he held having had just cause to terminate the Contract on 21 June due to the
consistency of the said outstanding debts.
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REF. FPSD-10959
17. Accordingly, the Player lodged a counterclaim against the Club and requested to be
awarded a total of USD 12,600 as outstanding remuneration plus the relevant default
interest. The Player did not make any claim regarding compensation for breach of contract.
c. Club’s reply to the counterclaim
18. In response to the counterclaim, the Club maintained its previous allegations, insisting in
particular on having properly informed all its players (including the
Respondent/Counterclaimant) about the relevant training camp in Egypt as well as the
several difficulties related to the Sudanese civil war.
19. In this context, the Club held that the Player had clearly no intention to maintain any
employment relationship and openly refused to join the relevant training camp in Egypt in
violation of his duties under the Contract, thus not allowing the Club to comply with its
financial obligations in spite of the fact that the relevant payments had been granted by
the latter by means of letter dated 9 June 2023.
20. Accordingly, the Club reiterated that the Player has de facto refused being paid against the
will of the Club and terminated the Contract without just cause, hence the Club shall be
compensated for the said breach.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
21. 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 18 July 2023 and submitted for
decision on 15 November 2023. Taking into account the wording of art. 34 of the March
2023 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.
22. 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 May 2023 edition), the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Sudanese club and a Ghanian
player.
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REF. FPSD-10959
23. 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 (May 2023 edition) and
considering that the present claim was lodged on 18 July 2023, the aforementioned edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
24. 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
25. 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
26. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute as whether the Player
had just cause to terminate the employment contract and the consequences that follow.
27. Before entering the analysis of this specific case, the Chamber deemed it appropriate to
remind the parties that only a breach or misconduct which is of a certain severity justifies
the termination of a contract. 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 to ensure the fulfilment of the contractual
duties by the counterparty, such measures must be taken before terminating an
employment contract. A premature termination of an employment contract can only ever
be an ultima ratio measure.
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REF. FPSD-10959
28. In line with the above, the Chamber also referred to the specific wording of art. 14 par. 2
of the Regulations, according to which “any abusive conduct of a party aiming at forcing the
counterparty to terminate or change the terms of the contract shall entitle the counterparty (a
player or a club) to terminate the contract with just cause”.
29. In this context, the Chamber observed that it remained undisputed that at the time of the
termination by the Player, on 21 June 2023, the Club was in default of 3 monthly salaries,
i.e., March, April and May 2023.
30. In this respect, the Chamber took note of the reasons alleged by the Club with regard to
the non-payment of the relevant Player’ salaries during the civil war in Sudan, in particular
the financial restrictions deriving from being subject to bank seizures which would
objectively impede the Club to comply with its financial obligations towards its squad.
31. Equally, the Chamber noticed that according to the Club, the Player had been promised to
receive all the outstanding sums once he had travelled to Egypt, in occasion of the relevant
training camp organized by the Club, hence the latter’s default would have been cleared if
the Player had followed the Club’s instructions, quod non.
32. Notwithstanding the above, the Chamber observed that the Club has not corroborated its
position, namely as it failed to provide evidence of the referred bank account‘ seizures and,
more in general, of the alleged impossibility of paying the Player earlier than 20 June 2023
or even after.
33. Conversely, based on the documentation in its possession, the Chamber noticed that the
Club remained inert during several months prior to the Player’s default notice dated 6 June
2023, without providing the Player with any justification as to the undisputed delays in the
payments of the latter’ salaries and thus failing to comply with its financial obligations
during the relevant contractual period.
34. Moreover, in the Chamber’s view, the Club did not make any effort to safeguard the Player’s
expectations that the Club would resume complying with its financial obligations under the
Contract, namely as the Club’s letter dated 9 June 2023 apparently referred to the day of
20 June 2023 as the date for the relevant training camp to be held in Egypt and not as the
effective deadline for payment of the Player’s outstanding salaries. In this regard, the
Chamber also noticed that, as per the same Club’s admission in its reply to the
counterclaim, the training camp date had been subsequently shifted geographically and
temporally, in particular to Tunisia on 27 June 2023, proving, once again, the unreliability
of the Club’s communications.
35. Bearing in mind the foregoing as well as the principle of burden of proof, the Chamber
noted that the behaviour of the Club resulted clearly and deliberately abusive.
Furthermore, the Chamber took note of the evidence provided by the Player, showing that
he consistently and in good faith tried to contact the Club and be allowed to comply with
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REF. FPSD-10959
the terms of the employment contract by granting a further deadline despite having the
Club been in delay of several salaries and housing allowances. In this context, the Chamber
concluded that the circumstances of the present case are in line with art. 14 par. 2 of the
Regulations and therefore the Player had a just cause to terminate the Contract, due to the
abusive conduct of the Club.
36. Accordingly, the Chamber decided to reject the Club’s claim and to accept the Player’s
counterclaim in its entirety.
37. 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
remained outstanding, i.e., USD 12,600.
38. In addition, taking into consideration the Player’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard, the latter decided to award the Player
interest at the rate of 5% p.a. on the outstanding amounts as from the respective due dates
until the date of effective payment.
39. Finally, and for the sake of good order, the Chamber wished to remark that, in principle,
the party being in breach of contract shall be liable to pay compensation to the
counterparty, based on art. 17 par. 1 of the Regulations. Nonetheless, the Chamber
observed that in the case at stake the Player limited his claim to the outstanding
remuneration due by the Club until May 2023, hence pursuant to the general principle of
ne ultra petita the Chamber’s award shall be limited accordingly.
ii. Compliance with monetary decisions
40. 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.
41. 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.
42. Therefore, bearing in mind the above, the DRC decided that the Claimant/CounterRespondent must pay the full amount due (including all applicable interest) to the
Respondent-Counterclaimant within 45 days of notification of the decision, failing which,
at the request of the Respondent-Counterclaimant, a ban from registering any new players,
either nationally or internationally, for the maximum duration of three entire and
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REF. FPSD-10959
consecutive registration periods shall become immediately effective on the
Claimant/Counter-Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
43. The Claimant/Counter-Respondent shall make full payment (including all applicable
interest) to the bank account provided by the Respondent-Counterclaimant in the Bank
Account Registration Form, which is attached to the present decision.
44. 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
45. 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.
46. 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.
47. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-10959
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Al Hilal KH, is rejected.
2.
The counterclaim of the Respondent/Counterclaimant, Imoro Ibrahim, is accepted.
3.
The Claimant/Counter-Respondent, Al Hilal KH, must pay to the Respondent/Counterclaimant
the following amount(s):
USD 4,200 as outstanding remuneration plus 5% interest p.a. as from 1 April 2023 the
date of effective payment;
USD 4,200 as outstanding remuneration plus 5% interest p.a. as from 1 May 2023 the
date of effective payment;
USD 4,200 as outstanding remuneration plus 5% interest p.a. as from 1 June 2023 the
date of effective payment;
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 Claimant/Counter-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.
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.
6.
The
consequences
shall
only
be
enforced
at
the
request
of
the
Respondent/Counterclaimant 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
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REF. FPSD-10959
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 Governing the Football
Tribunal).
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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