Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 10 February 2020,
by
Daan de Jong (The Netherlands)
on the claim presented by the player,
Hele Hele Is aac, Cameroon,
represented by Mr Mathew Chukwuemeka Friday
as Claimant
against the club,
S uns hine S tars FC, Nigeria
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 1 April 2017, the player Hele Hele Isaac (hereinafter: the player or the
Claimant) concluded an employment contract (hereinafter: the contract) with the
club, Sunshine Stars FC (hereinafter: the club or the Respondent), valid as from 1
April 2017 until December 2017.
2.
The contract stipulated the following:
“7. The Player’s remuneration shall be:
7.1 Basic wage NGN [Nigerian Naira] 300,000.
N…… per annum payable by monthly instalments in arrears from April 1st to 31st
Dec 2017.
7.2 Such of the bonuses and incentives as the Player shall be entitled to receive
under the terms of the Club’s bonus and incentive scheme as are set out below/ a
copy of which is annexed hereto.
Bonuses
Match bonus
Insurance”
3.
The player sent several default notices to the club, the first one on 14 January
2019, requesting the payment of NGN 1,500,000.
4.
On 29 May 2019, the player lodged a claim in front of FIFA, requesting the
following:
“the CLAIMANT respectfully urges the DISPUTE RESOLUTION CHAMBER for the
following ORDERS:
i. Determining that the RESPONDENT breached the contract agreement by failing
and refusing to pay him all his outstandings total NGN 1,500,000 […] in Nigeria
Currency plus 5% interest p.a. until the date of effective payment.
ii.
Holding the RESPONDENT responsible for the breach of the employment
contract and determining the payment of compensation to the claimant.
iii.
AND such other ORDERS or further ORDERS as the DISPUTE RESOLUTION
CHAMBER may deem fit to make in this circumstances.”
BREAKDOWN OF PAYMENT:
1.
Outstanding Salaries April, 2017 and September to December 2017. NGN
1,500,000.”
Player Hele Hele Isaac, Cameroon / Club Sunshine Stars FC, Nigeria
Page 2 of 10
5.
In his claim, the player deemed that the club “never paid the Claimant his monthly
salaries as agreed in the contract agreement” despite being put in default several
times.
6.
Moreover, the player argued that once he “faced the violation” the club sent a
letter on 29 November 2017 informing the player that “he is being released from
his present employment contract based on the expiration of his contract with the
Club effective from 30th September, 2017”.
7.
The player, however, argued that it was “backdated” and never signed by him.
8.
In its reply, the club deemed that it paid the player’s salary for April 2017, which
was agreed between the parties to be NGN 147,000.
9.
Furthermore, the club argued that it paid all salaries until September “when his
contract expired”. In support of its statements, the club provided documents titled
“payment vouchers” which were not signed by the player.
10.
The player remained unemployed since his employment with the Respondent.
II.
Cons iderations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: the DRC
judge) analysed whether he was competent to deal with the case at hand. In this
respect, he took note that the present matter was submitted to FIFA on 29 May
2019. Taking into account the wording of art. 21 of the 2019 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.
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
conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition January 2020) he is competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension
between a Cameroonian player and a Nigerian club.
3.
Furthermore, the DRC judge analysed which regulations should be applicable as to
the substance of the matter. In this respect, he confirmed that in accordance with
art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players
(edition January 2020), and considering that the present claim was lodged on 29
Player Hele Hele Isaac, Cameroon / Club Sunshine Stars FC, Nigeria
Page 3 of 10
May 2019, the June 2018 edition of said regulations (hereinafter: the Regulations)
is applicable to the matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter.
Subsequently, the DRC judge continued by acknowledging the above-mentioned
facts as well as the documentation contained in the file in relation to the
substance of the matter. However, the DRC judge emphasised that in the
following considerations he will refer only 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.
5.
In this respect, the DRC judge acknowledged that the parties to the dispute had
signed a valid employment contract on 1 April 2017, in accordance with which the
Respondent would pay the Claimant a monthly salary in the amount NGN 300,000.
6.
In continuation, the DRC judge acknowledged that on 29 May 2019, the Claimant
lodged a claim against the Respondent in front of FIFA, alleging that, on that date,
the following amounts remained outstanding:
- NGN 300,000, corresponding to the salary for April 2017;
- NGN 300,000, corresponding to the salary for September 2017;
- NGN 300,000, corresponding to the salary for October 2017;
- NGN 300,000, corresponding to the salary for November 2017;
- NGN 300,000, corresponding to the salary for December 2017.
7.
In this context, the DRC judge referred to art. 25 par. 5 of the Regulations,
according to which the Dispute Resolution Chamber shall not hear any case subject
to the Regulations if more than two years have elapsed since the event giving rise
to the dispute. Considering that the claim of the Claimant was lodged on 29 May
2019 only, the DRC judge found that he could not enter into any claim for salaries
that fell due prior to 29 May 2017.
8.
Taking into account the previous considerations, the DRC judge preliminarily
concluded that the Claimant’s request for salaries accrued before the date of 29
May 2017 was barred by the statute of limitations in accordance with art. 25 par. 5
of the Regulations.
Player Hele Hele Isaac, Cameroon / Club Sunshine Stars FC, Nigeria
Page 4 of 10
9.
Subsequently, the DRC judge acknowledged that the parties dispute the manner
and the date of the termination of the contract. While the player claims that the
club terminated the contract with its letter dated 29 November 2017, the club
deemed that the contract “expired” in September 2017.
10.
In view of the foregoing, the DRC judge deemed that the first issue to be solved is
how the contract was terminated and on which date. In so doing, the DRC judge
proceeded with an analysis of the parties’ arguments as well as of the
documentation on file, bearing in mind the wording of 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.
11.
Bearing in mind the foregoing, the DRC judge analysed the termination letter that
was provided by both parties and noted that while referring to the termination of
the contract on 30 September 2017, it was dated 29 November 2017. Thus the DRC
judge concluded that the contract was terminated by the club on 29 November
2017.
12.
Having established the foregoing, the DRC judge noted that, on the one hand, the
player claims that the club did not pay any salary for September to December
2017. On the other hand, the club argued that it paid the salary for September
2017 and in support of its statement provided a document titled “payment
voucher”.
13.
The DRC judge proceeded in analysing said document and noted that it was not
signed by the player. Moreover, the DRC judge emphasised that this document was
not issued by any bank, but was simply a list created and signed by the club. As
such, the DRC judge could not accept this document as sufficient evidence that the
salary for September 2017 was paid.
14.
Continuously, the DRC judge deemed that the underlying issue in this dispute was
to determine whether the termination of the contract by the club was made with
or without just cause, and subsequently, if it were found that the contract was
terminated without just cause, to determine the consequences of such early
termination by the club.
15.
In this respect, the DRC judge 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.
16.
In view of the above, the DRC judge observed that the club did not submit any
reason for the termination of the contract.
Player Hele Hele Isaac, Cameroon / Club Sunshine Stars FC, Nigeria
Page 5 of 10
17.
As a result of the foregoing, due to the lack of arguments and evidence provided
by the club, the DRC judge came to the conclusion that, by means of its letter
dated 29 November 2017, the club terminated the contract with the player
without just cause.
18.
Having established that the Respondent is to be held liable for the early
termination of the employment contract, the DRC judge focused his attention on
the consequences of such termination. Taking into consideration art. 17 par. 1 of
the Regulations, the DRC judge established that the Claimant is entitled to receive
from the Respondent compensation for breach of contract, in addition to any
outstanding payments on the basis of the relevant employment contract.
19.
Bearing in mind the above, the DRC judge accepted the player’s claim for
outstanding remuneration and in accordance with the general legal principle of
pacta sunt servanda, the DRC judge decided that the club is liable to pay to the
player the amount of NGN 900,000 with regard to the remuneration due to him
between September and November 2017.
20.
Furthermore, considering the player’s claim for interest and also taking into
account the DRC’s longstanding jurisprudence, the DRC judge ruled that the
Respondent must pay 5% interest p.a. as from 29 May 2019 until the date of
effective payment.
21.
In continuation, the DRC judge focused his attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so,
the DRC judge 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 Claimant 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.
22.
In application of the relevant provision, the DRC judge held that he first of all had
to clarify as to whether the pertinent employment contract contains 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 DRC judge established that no such compensation
clause was included in the employment contract at the basis of the matter at stake.
23.
As a consequence, the members of the DRC judge determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations. The
Player Hele Hele Isaac, Cameroon / Club Sunshine Stars FC, Nigeria
Page 6 of 10
DRC judge recalled that said provision provides for a non-exhaustive enumeration
of criteria to be taken into consideration when calculating the amount of
compensation payable. Therefore, other objective criteria may be taken into
account at the discretion of the deciding body. In this regard, the DRC judge
emphasised beforehand that each request for compensation for contractual
breach has to be assessed by the DRC judge on a case-by-case basis taking into
account all specific circumstances of the respective matter.
24.
The DRC judge then turned his attention to the remuneration and other benefits
due to the Claimant under the existing contract and/or the new contract, which
criterion was considered by the DRC judge to be essential. The DRC judge deemed
it important to emphasise that the wording of art. 17 par. 1 of the Regulations
allows the DRC judge to take into account both the existing contract and the new
contract, if any, in the calculation of the amount of compensation.
25.
Bearing in mind the foregoing, the DRC judge proceeded with the calculation of
the monies payable to the player under the terms of the employment contract as
from the date of termination with just cause by the Claimant until its natural
expiration, bearing in mind that he would have received in total NGN 300,000 as
remuneration for the month of December 2017. Consequently, the Chamber
concluded that the amount of NGN 300,000 serves as the basis for the final
determination of the amount of compensation for breach of contract in the case
at hand.
26.
In continuation, the DRC judge verified as to whether the Claimant 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.
27.
In respect of the above, the DRC judge noted, that according to the information
contained in TMS, the player had not signed a new employment contract after 29
November 2019 and therefore had not been able to mitigate his damages.
Therefore, no further deductions should be made to the amount of NGN 300,000,
in accordance with art. 17 par. 1 lit. i) of the Regulations.
28.
Consequently, on account of the above-mentioned considerations, the DRC judge
decided to accept the Claimant’s claim and held that the Respondent must pay the
amount of NGN 300,000 as compensation for breach of contract to the Claimant,
which is considered by the DRC judge to be a fair and reasonable amount.
29.
In addition, taking into account the player’s request and the DRC’s well-established
jurisprudence, the DRC judge decided that the club must pay to the player interest
of 5% p.a. on the amounts of 300,000 as of the date on which the claim was
lodged, i.e. 29 May 2019, until the date of effective payment.
Player Hele Hele Isaac, Cameroon / Club Sunshine Stars FC, Nigeria
Page 7 of 10
30.
Furthermore, taking into account the consideration under number II./3. above, the
DRC judge referred to par. 1 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.
31.
In this regard, the DRC judge pointed out 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 and for the maximum duration of three entire and consecutive
registration periods.
32.
Therefore, bearing in mind the above, the DRC judge decided that, in the event
that the Respondent does not pay the amount due to the Claimant within 45 days
as from the moment in which the Claimant, following the notification of the
present decision, communicates the relevant bank details to the Respondent, a ban
from registering any new players, either nationally or internationally, for the
maximum duration of three entire and consecutive registration periods shall
become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of
the Regulations.
33.
Moreover, the DRC judge recalled that the above-mentioned sanction will be lifted
immediately and prior to its complete serving upon payment of the due amounts,
in accordance with art. 24bis par. 3 of the Regulations.
34.
Finally, the DRC judge concluded his deliberations in the present matter by
establishing that any further claims lodged by the player are rejected.
Player Hele Hele Isaac, Cameroon / Club Sunshine Stars FC, Nigeria
Page 8 of 10
III.
Decision of the DRC judge
1.
The claim of the Claimant, Hele Hele Isaac, is partially accepted insofar as it is
admissible.
2.
The Respondent, Sunshine Stars FC, has to pay to the Claimant the amount of NGN
900,000, plus 5% interest p.a. as from 29 May 2019 until the date of effective
payment.
3.
The Respondent has to pay to the Claimant compensation for breach of contract in
the amount of NGN 300,000, plus 5% interest p.a. as from 29 May 2019 until the
date of effective payment.
4.
Any further claim lodged by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the email address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amounts plus interest mentioned under points 2. and 3. above.
6.
The Respondent shall provide evidence of payment of the due amounts in
accordance with points 2. and 3. above to FIFA to the e-mail address
[email protected], duly translated into one of the official FIFA languages (English,
French, German, Spanish).
7.
In the event that the amounts due in accordance with points 2. and 3. above are
not paid by the Respondent w ithin 45 day s as from the notification by the
Claimant of the relevant bank details to the Respondent, the Respondent shall be
banned from registering any new players, either nationally or internationally, up
until the due amounts are paid and for the maximum duration of three entire and
consecutive registration periods (cf. art. 24bis of the Regulations on the Status and
Transfer of Players).
8.
The ban mentioned in point 7. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
Player Hele Hele Isaac, Cameroon / Club Sunshine Stars FC, Nigeria
Page 9 of 10
9.
In the event that the amounts due in accordance with points 2. and 3. above are
still not paid by the end of the ban of three entire and consecutive registration
periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for consideration and a formal decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee
or the DRC. Where such decisions contain confidential information, 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 Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).
Note relating to the m otiv ated decision (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS.
Within another 10 days following the expiry of the time limit for filing the statement of
appeal, the appellant shall file a brief stating the facts and legal arguments giving rise
to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2, CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
e-mail: [email protected]
www.tas-cas.org
For the DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Hele Hele Isaac, Cameroon / Club Sunshine Stars FC, Nigeria
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