Labour Disputes
Texto da decisão
REF FPSD-6280
Decision of the
Dispute Resolution Chamber
passed on 28 September 2022
regarding an employment-related dispute concerning the player
Sawadogo Hamed Ismael
BY:
André dos Santos Megale (Brazil)
CLAIMANT:
Sawadogo Hamed Ismael, Burkina Faso
Represented by FIFPRO Division Africa
RESPONDENT:
Difaa El Jadida, Morocco
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I. Facts of the case
1.
On 16 August 2021, the Burkinabe player Sawadogo Hamed Ismael (hereinafter: the
Claimant) and the Moroccan club Difaa El Jadida (hereinafter: the Respondent) concluded
an employment contract (hereinafter: the contract), valid as from 16 August 2021 until
30 June 2024.
2.
Under the contract, the Respondent undertook to pay to the Claimant the amount of
USD 2,000 as a monthly salary and a signing bonus of USD 56,000, payable as follows:
−
−
−
USD 35,000 after the receipt of the ITC;
USD 10,500 on 30 January 2022;
USD 10,500 on 30 April 2022.
3.
By correspondence dated 11 May 2022, the Claimant put the Respondent in default of
payment of USD 12,500 (salary and signing bonus), setting a 10 days’ time limit in order
to remedy the default.
4.
The said request was reiterated by the Claimant on 12 and 24 May 2022, however, to no
avail.
5.
After initiation of the proceedings before FIFA, between 4 and 9 July 2022, negotiations
between the parties took place and three documents were allegedly established: debt
acknowledgement, amicable settlement and a confirmation that the Claimant has
receive the amount of Moroccan Dirham (MAD) 50,000 from the Respondent.
6.
First of all, the Claimant asserted that there is a binding debt acknowledgement
(hereinafter: the debt acknowledgement) between the parties, in which the Respondent
recognized his debt of USD 10,500 towards the Claimant.
7.
In this respect, the Claimant provided, a WhatsApp screenshot of an unsigned copy of the
said document dated 4 July 2022, without further identifying the respective person in the
WhatsApp conversation nor his/her number. The Respondent rejected the validity of the
debt acknowledgement, arguing that merely two documents were signed, i.e. the
settlement agreement and the debt acknowledgement.
8.
In this respect, an amicable settlement (hereinafter: the amicable settlement) was signed
on 5 July 2022 and both Claimant and the Respondent confirmed to have signed said
document. The contents of the amicable settlement are the following:
“Le joueur SAWADOGO HAMED ISMAEL et Ia société sportive DIFAA HASSANI JADIDI FOOTBALL
(DHJF) décident et acceptent, d'un commun accord, de mettre terme a leur collaboration et de
rompre le Contrat d'Engagement de Joueur Professionnel N°18 de Ia Saison sportive
2021/2022, précédemment signe entre les deux parties le 16/08/2021 et qui s'achèvent au
30/06/2024.
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La présente résiliation prend effet à compter du 05/07/2022, ses dispositions annulent
définitivement toutes les obligations nées de précédents contrats entre Ies deux parties.
De ce fait, ii est explicitement reconnu par Iedit joueur que tous ses droits financiers ont été
perçus, et déclare que sa situation financière envers Ia société sportive (DHJF) est définitivement
réglée, et ne réclamerai aucun dédommagement né de Ia résiliation amiable du contrat qui
devrait échoir le 30/06/2024.
La société sportive (DHJF) déclare que le joueur est libre à la date de Ia présente résiliation et
peut signer dans un club de son choix.
Les deux parties s'engagent à s'abstenir a toute déclaration qui peut porter atteinte à la dignité
et au prestige de chacune des deux parties. “
Free translation to English
The player SAWADOGO HAMED ISMAEL and the sports company DIFAA HASSANI JADIDI
FOOTBALL (DHJF) decide and accept, by mutual agreement, to put an end to their collaboration
and to break the Professional Player Commitment Contract N°18 of the 2021/2022 sports
season, previously signed between the two parties on the 16/08/2021 and which ends on the
30/06/2024.
The present termination takes effect as of 05/07/2022, its provisions definitively cancel all
obligations arising from previous contracts between the two parties.
Therefore, it is explicitly recognized by the said player that all his financial rights have been
collected, and declares that his financial situation towards the sports company (DHJF) is
definitively settled, and will not claim any compensation from the amicable termination of the
contract which should expire on 30/06/2024.
The sports company (DHJF) declares that the player is free on the date of this termination and
can sign with a club of his choice.
Both parties agree to refrain from any statement that may affect the dignity and prestige of
each of the two parties."
9.
Finally, the Claimant acknowledged to have signed the confirmation of the receipt of
MAD 50,000 (approx. USD 5,000) from the Respondent as well as the fact that he received
such amount.
II. Proceedings before FIFA
10. On 7 June 2022, the Claimant filed the claim at hand before FIFA.
11. On 23 June 2022, the Respondent filed its reply to the claim.
12. On 14 July 2022, the submission phase of the procedure was closed by FIFA.
13. On the same date, after the closure of investigation of 14 July 2022, the Respondent
provided FIFA general secretariat with an amicable settlement.
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14. A brief summary of the case is detailed in continuation.
a. Position of the Claimant
15. In its claim, the Claimant requested that the Respondent is ordered to pay to him overdue
payables in the amount of USD 10,500, corresponding to “missing bracket of the signing
bonus”.
16. The Claimant further asked to be awarded interest of 5% p.a. as from 30 April 2022 until
the date of effective payment.
b. Position of the Respondent
17. The Respondent rejected the claim of the Claimant as it argued that:
“1- Financial situation regularized with the player to date, as well as advances have been given
to the player under the next season
2- The player was sanctioned by the Committee of Discipline and Fair Play of the Club with a
fine. Copy sent to the FRMF and FIFA on 20/05/2022”. (freely translated from French)
18. After the closure of investigation of 14 July 2022, the Respondent provided FIFA general
secretariat with the amicable settlement.
c. Position of the Claimant
19. The Claimant was requested by the FIFA general secretariat to provide comments on the
amicable settlement.
20. In his reply, the Claimant argued that such submission shall not be admitted to the file as
it was received by FIFA after the closure of investigation.
21. Furthermore, the Claimant argued that the Respondent acted “in bad faith, as by providing
only the termination agreement given that two documents were signed on the very same day,
i.e. the termination agreement and a debt acknowledgement according to which the club
committed to pay all my outstanding remuneration, i.e. USD 12 500.”
22. In this respect, the Claimant argued that he was never provided with the signed versions
of these documents and that he would also not have signed the amicable settlement
which would exclude his overdue payables as this would not have been valid.
23. The Claimant argued that he is “willing to continue to act in good faith, if the club provides
the duly signed debt acknowledgement, I would limit my request to the outstanding amounts,
which is USD 7 500 (as I received USD 5 000 in cash).”
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24. In an alternative, “if the club persists to refuse to provide this document, I therefore hereby
amend my initial claim and consider that the club terminated the contract without just cause
since the termination agreement is invalid and request the following:
- USD 2 000 as salary for the month of June 2022, plus 5% interest p.a. as of 1 July 2022;
- USD 5 500 as remaining payment of the signing on fee, plus 5% interest p.a as of 30 April
2022;
- USD 192 000 (25 x 2 000 as salaries, 66 000 + 76 000 as annual bonus) as compensation for
breach of contract, plus 5% interest p.a. as of 1 July 2022.”
25. Finally, the Claimant amended his request for relief as follows:
“a) To order the Club to make available the duly signed version of the debt acknowledgement;
b) If the club does so, to order the club to pay me USD 7 500 as outstanding remuneration as
per the debt acknowledgement;
c) If the club does not provide the debt acknowledgement, to sanction the club for its behaviour
and to order the club to pay me:
- USD 2 000 as salary for the month of June 2022, plus 5% interest p.a. as of 1 July 2022
- USD 5 500 as remaining payment of the signing on fee, plus 5% interest p.a as of 30 April
2022;
- USD 192 000 as compensation for breach of contract, plus 5% interest p.a. as of 1 July 2022.”
d. Position of the Respondent
26. The Respondent rejected the arguments of the Claimant and insisted that the parties
terminated the contact mutually. In this respect, the Respondent requested the amicable
settlement to be admissible to the file.
27. The Respondent argued that “At the end of the championship and at his request, wanted to
terminate the contract amicably with a request to pay him the complement of his signing
bonus which represented a total of 10500 dollars. After several negotiations, and given that:
1- The player expresses his interest to leave the club and wants to terminate his contract
amicably.
2- The player will be released and will be able to sign in another club
3- That the club has decided not to ask for a financial compensation of transfer to another
club.
4- The club will not benefit from the player's full sporting involvement.
It has been mutually decided without any pressure that both parties would part amicably
according to the terms of the signed agreement with a severance payment for the player
equivalent to 5000 dollars.”
28. Finally, the Respondent rejected the validity of the debt acknowledgement and insisted
that the parties only agreed upon the following:
“-The club will pay the player first a severance package equivalent to 5000 dollars.
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-The player will sign the termination amicably, recognizing that his financial situation has been
regularized.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
29. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the Single Judge) analysed whether he was competent to deal with the case at hand.
In this respect, it took note that the present matter was presented to FIFA on 7 June 2022
and submitted for decision on 28 September 2022. Taking into account the wording of
art. 34 of the June 2022 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.
30. Subsequently, the Single Judge 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 (July 2022 edition), he is competent to
deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Burkinabe player and a Moroccan club.
31. Subsequently, the Single 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 2 of the Regulations on the Status and Transfer of Players (July 2022 edition),
and considering that the present claim was lodged on 7 June 2022, the March 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Admissibility of the amicable settlement provided by the Respondent
during the proceedings
32.
The Single Judge observed that whereas FIFA closed the submission phase of the
matter on 14 July 2022, the Respondent has provided an amicable settlement later that
day, i.e. after the said closure of the submission phase.
33.
In this respect, the Single Judge acknowledged that the Claimant believed such
submission shall not be submitted to the file.
34.
Nonetheless, in line with art. 23 the Procedural Rules, for reasons of procedural
economy, the Single Judge decided to consider the amicable settlement in the
proceedings at the matter at hand.
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35.
For the sake of completeness, and under the circumstances, the Single Judge
underlined that the Claimant was invited to comment on the amicable settlement
presented by the Respondent and that, consequently, the parties were treated equally
throughout the process and were each afforded the right to be heard.
a. Burden of proof
36. The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he may
consider evidence not filed by the parties, including without limitation the evidence
generated by or within the Transfer Matching System (TMS).
b. Merits of the dispute
37. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, he started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
the Single 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.
i. Main legal discussion and considerations
38. The foregoing having been established, the Single Judge moved to the substance of the
matter, and firstly took note of the fact that it remained undisputed by the parties that
during the proceedings before FIFA, they signed the amicable settlement and the player
received USD 5,000.
39. Nonetheless, the Single Judge recalled the argumentation of the Claimant that the
Respondent has acknowledged a total debt of USD 10,500 in the form of the debt
acknowledgement. In this respect, the Single Judge acknowledged that the Claimant is of
the opinion that further amounts remained outstanding.
40. Equally, the Single Judge recalled Respondent’s submission in which the latter rejected
the validity of the debt acknowledgement, arguing that merely two documents were
signed, i.e. the settlement agreement and the debt acknowledgement.
41. In this context, the Single Judge acknowledged that it his task was to determine, based on
the evidence presented by the parties, whether the debt acknowledgement is indeed valid
and binding document and shall be taken into consideration in these proceeding.
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42. The Single Judge first noted that in the case at hand the Claimant bore the burden of
proving the validity of said debt acknowledgement.
43. In this respect, the Single Judge noted that to support his argumentation, the Claimant
merely provided a WhatsApp screenshot of such unsigned document and, in addition, the
respective person in the respective WhatsApp conversation as well as his/her number
remained unidentified.
44. Based on the above-mentioned evidence on file, the Single Judge decided to reject the
claim of the Claimant as the latter failed to meet his burden of proof that the respective
debt acknowledgement was provided by the Respondent and that the latter consented to
it.
45. For the sake of completeness, the Single Judge pointed to the amicable settlement dated
5 July 2022 which does not mention any alleged outstanding amounts, but clarifies that:
“it is explicitly recognized by the said player that all his financial rights have been collected,
and declares that his financial situation towards the sports company (DHJF) is definitively
settled, and will not claim any compensation from the amicable termination of the contract
which should expire on 30/06/2024.”
ii. Consequences
46. Having stated the above, the Single Judge concluded that the claim shall be rejected.
c. Costs
47.
The Single Judge 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, he decided that no procedural costs were to be
imposed on the parties.
48.
For the sake of completeness, the Single Judge recalled the contents of art. 25 par. 8 of
the Procedural Rules, and decided that no procedural compensation shall be awarded
in these proceedings.
49.
Lastly, the Single Judge concluded his 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, Sawadogo Hamed Ismael, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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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