Labour Disputes
Texto da decisão
REF. FPSD-12685
Decision of the
Dispute Resolution Chamber
passed on 14 February 2024
regarding an employment-related dispute concerning
the player Gaira Joof
BY:
Martín AULETTA (Argentina), Deputy Chairperson
Stella MARIS JUNCOS (Argentina), member
Jorge GUTIÉRREZ (Costa Rica), member
CLAIMANT:
Gaira Joof, Gambia
RESPONDENT:
Real Kashmir FC, India
pg. 2
REF. FPSD-12685
I. Facts of the case
1. The player and Real Kashmir FC concluded an employment contract valid as from 13
October 2023 until 31 May 2024.
2. Following Schedule I to the contract, the player was entitled to the following:
Clause
Details
1. Remuneration
Monthly payment of INR 251,367 inclusive of TDS from Oct
20, 2023, to Mar 31, 2024.
Post Mar 31, 2024, payments are Pro-rata.
Payable by the 10th of the subsequent month.
2. Facilities
Accommodation, one return Economy Ticket, food, and
beverages during club duties.
Phone SIM card at Club's discretion.
Club repays reasonable medical report costs.
3. Bonus
Player receives USD 100 for each goal scored.
3. Schedule I to the contract further stipulated the following:
“6.1. This Agreement shall be governed by and construed in accordance with Indian law.
6.2. In the event a dispute arises between the Club and the Player, regarding any issue
other than termination, the Parties agree to seek to resolve the dispute in good faith
through a process of good faith negotiations and discussions.
6.3. If a dispute between the Club, and the Player is not resolved within ten (10) days of
the process contemplated in Article 6.2 then the dispute will be referred for resolution to
the AIFF National Dispute Resolution Chamber in accordance with the provisions of the
NDRC Regulations, or the AIFF Player Status Committee or any alternate body as may be
determined in this regard by the AIFF till such time as the AIFF National Dispute Resolution
Chamber is established.
6.4. All disputes relating to termination will be referred to the AIFF National Dispute
Resolution Chamber in accordance with the provisions of the NDRC Regulations for
adjudication, or the AIFF Player Status Committee or any alternate body as may be
determined in this regard by the AIFF till such time as the AIFF National Dispute Resolution
Chamber is established, directly without undergoing the process referred to in paragraph
6.2 unless both the Player and the Club mutually decide otherwise in writing.
6.5. At any stage of the good faith negotiation process referred to in paragraph 6.2 both
the Player and Club can mutually agree to refer the matter to the AIFF National Dispute
Resolution Chamber for an urgent decision or any alternate body as may be determined
in this regard by the AIFF till such time as the AIFF National Dispute Resolution Chamber is
established, and, in such circumstances the
requirement for the ten (10) day window for good faith negotiations under paragraph 6.2
will not apply.
6.6. If the dispute is not within the jurisdiction or scope of the AIFF National Dispute
Resolution Chamber or the AIFF Players’ Status Committee, then it shall be referred to
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REF. FPSD-12685
arbitration under a sole arbitrator appointed by mutual consent under the provisions of
the Arbitration and Conciliation Act 1996 or any modification thereof then in effect. The
arbitration shall be in English and the seat and venue of arbitration shall be HOTEL CH2
SONWAR SRINAGAR, KASHMIR 190004. Subject to the above, the Courts at JAMMU AND
KASHMIR shall have sole and exclusive jurisdiction in respect of all matters addressed
under this paragraph 6.”
4. On 19 October 2023, the club sent a letter to the Honorary Consulate General of India
in Banjul, indicating that it concluded a contract with the player and requested to issue
a Multiple Entry Visa.
5. As per evidence provided by the club, on 21 October 2023, it proposed the player to
mutually terminate the contract. The club attached a draft of said termination
agreement, signed by the club but not by the player.
6. As per evidence provided by the club, from 26 October 2023 until 10 November 2023,
it had a conversation via WhatsApp. Said conversation discuss visa issues for the
player’s travel to India. The messages relate to the player's attempts to secure a visa,
challenges at the border, and communication issues. The club expressed frustration.
The player emphasized the difficulty of his journey, and seeked fro assistance in the
visa process..
7. On 21 November 2023, the club sent a message to the player indicating the following:
“We wanted to inform you that we have signed a player Mr. Gaira Joof from Gambia for
the 2023-2024 I League season. However, there is no Indian Embassy office in the Gambia,
and our player is required to approach the Indian embassy in their neighboring country,
Senegal. We have completed all the necessary formalities and submitted all required
documents to the Indian embassy in Senegal to secure his visa. Despite our multiple
reminders and attempts to communicate, the player has not taken the necessary steps to
approach the Indian embassy in Senegal.
We have already made his registration on the AIFF CRS (Central Registration System) and
added it on CMS. However, we could not upload his FIFA PCMA as doctors have to conduct
his physical check-up here before issuing the FIFA PCMA. Besides he has not sent the signed
integrity form.
We have already done his insurance and also paid the amount for his registration which
cost our club Rs 50,000. He was our main striker but he missed our crucial matches. We
sent him multiple reminders and called him repeatedly but there is no response from his
side. As the I League has already commenced, and we have received no response or
cooperation from the player, we are forced to terminate his contract. The player will also
be communicated about his contract termination. Please tell us if you need any details or
we have to complete any more formalities.
Please find the attached Termination of Contract for your reference.“
8. The player declared that he remained unemployed.
pg. 4
REF. FPSD-12685
II. Proceedings before FIFA
9. On 15 November 2023, the player lodged a claim before the FIFA Football Tribunal
for outstanding remuneration and breach of contract without just cause and
requested the following:
- EUR 1,878.52 as outstanding remuneration plus 5% interest p.a. as from 10
November 2023;
- EUR 13,149.64 as compensation plus 5% interest p.a. as from 10 November
2023.
- Payment of legal costs.
10. In its reply, the club considered that, as per the contract, the matter shall be referred
to the All India Football Federation’s NDRC.
11. The club stated that the AIFF Regulations on the Status and Transfer of Players
(2023) guarantees an arbitral tribunal in line with FIFA’s Circular No. 1010.
12. As to the substance, the club detailed the circumstances leading to the termination
of the Player's contract.
13. The Club argued that it took necessary steps to register the Player, procure
insurance, and pay registration fees.
14. According to the club, despite efforts to obtain a visa for the Player, he failed to
cooperate and attend consulate appointments.
15. The Club issued a Mutual Termination Agreement after the Player misrepresented
visa processing timelines.
16. The Club stated that, in good faith, it withdrew the termination letter but received no
response from the Player.
17. Hence, according to the Club, the termination was justified due to the Player's
continuous lack of cooperation.
18. The Respondent offered to honor the contract but argued against any sanctions.
19. In his replica, the Claimant insisted that FIFA's deciding bodies had jurisdiction over
the dispute.
20. The respondent had claimed that the AIFF (All India Football Federation) did not have
a dispute resolution chamber.
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REF. FPSD-12685
21. The claimant argued that the inclusion of an exclusive jurisdiction clause in the
contract was abusive and lacked guarantees of fair proceedings.
22. The Claimant considered that the Respondent failed to prove that the AIFF bodies
observed FIFA regulations.
23. The Claimant asserted that the contract was terminated without just cause.
24. In this respect, the Claimant argued that the Respondent failed to assist him in
obtaining a visa, leading to contract termination. The Claimant further argued that
the club registered another player in place of him before the league commenced.
25. The Claimant argued that the termination was unilateral, and he was not
responsible for visa delays.
26. The Claimant argued that the termination was effective on 10 November 2023.
27. In its duplica, the Respondent argued that the Claimant's attempt to contest the
competence of FIFA's deciding bodies and the inclusion of a jurisdiction clause in the
employment contract was unfounded.
28. The Respondent asserted that the agreed-upon national forum with an independent
arbitration tribunal, as per the contract, should have been given precedence. They
argued that the inclusion of the jurisdiction clause was not abusive and provided a
fair venue for dispute resolution.
29. Regarding the termination of the contract, the Respondent contended that the
Player had breached contractual obligations, including cooperation in obtaining a
visa.
30. The Respondent refuted the Claimant's claim that they had signed a replacement
player before the season kick-off, providing evidence of the Claimant's continued
registration with AIFF and the FIFA TMS portal. The Respondent stated that the new
signing was not intended as a replacement.
31. In conclusion, the Respondent requested the FIFA DRC to dismiss the claim entirely
and order the Claimant to bear all legal costs, administrative and procedural costs.
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REF. FPSD-12685
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 15 November 2023 and
submitted for decision on 14 February 2024. Taking into account the wording of art. 34 of
the May 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.
2.
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, the Dispute Resolution
Chamber is in principle competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Gambian player
and an Indian club.
3.
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), and considering
that the present claim was lodged on 15 November 2023, the May 2023 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
4.
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. Admissibility
5.
The Chamber further noted that the Respondent contested the competence of FIFA’s
deciding bodies in favour of the All India Football Federation’s NDRC (hereinafter: the NDRC
of India), alleging that the latter is competent to deal with any disputes deriving from the
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REF. FPSD-12685
relevant employment contract, in accordance with its clause 6 et seq. of the Schedule I of
the contract..
6.
The Chamber also noted that the Claimant insisted on the competence of FIFA to adjudicate
the present claim.
7.
Taking into account all the above, the Chamber emphasised that in accordance with art. 22
par. 1 lit. b) of the Regulations on the Status and Transfer of Players, FIFA is, in principle,
competent to hear an employment-related dispute between a club and a player of an
international dimension. Nevertheless, the parties may explicitly opt in writing for such
dispute to be decided by an independent arbitration tribunal that has been established at
national level within the framework of the association and/or a collective bargaining
agreement. Any such arbitration clause must be included either directly in the contract or
in a collective bargaining agreement applicable on the parties. The independent national
arbitration tribunal must guarantee fair proceedings and respect the principle of equal
representation of players and clubs. Equally, the Chamber referred to the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations,
which came into force on 1 January 2008.
8.
In this respect, the Chamber noted that art. 6 et seq. of the Schedule I to the contract very
broadly refer that the matter shall be submitted to “the AIFF National Dispute Resolution
Chamber in accordance with the provisions of the NDRC Regulations, or the AIFF Player Status
Committee or any alternate body as may be determined in this regard by the AIFF till such time
as the AIFF National Dispute Resolution Chamber is established”.
9.
However, the Chamber observed that the Respondent failed to provide any documentary
evidence which could prove that the national arbitration bodies of the NDRC of India meet
the requirements established in art. 22 par. 1 lit. b) of the Regulations on the Status and
Transfer of Players, detailed in the FIFA Circular no. 1010 as well as in art. 3 par. 1 of the
NDRC Regulations. On account of the above, and referring to the principle of burden of
proof contained in art. 13 par. 5 of the Procedural Rules, the Chamber established that the
Respondent’s objection towards the competence of FIFA to deal with the present matter
must be rejected, and FIFA is competent, on the basis of art. 22 par. 1 lit. b) of the
Regulations, to consider the present matter as to the substance.
d. Merits of the dispute
10. 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
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REF. FPSD-12685
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
11. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the present matter concerns a case for breach of
contract without just cause, where the contract appears to have never been executed since
the player had visa issues.
12. In particular, the Chamber noted that complications arose due to visa issues that prevented
the player from traveling to India. In particular, the parties explained that the player faced
challenges securing a visa and had difficulties at the border, leading to communication
issues between the player and the club.
13. The Chamber noted that the club argued that the termination was justified due to the
player's alleged lack of cooperation and failure to take necessary steps to approach the
Indian embassy in Senegal for visa processing. On the other hand, the player contends that
the termination was unilateral, and he was not responsible for the visa delays.
14. On this note, the Chamber recalled that, as per art. 18 par. 4 of the Regulations, the validity
of a contract may not be made subject to a successful medical examination and/or the
grant of a work permit.
15. The Chamber observed that evidence on file does not establish with clarity that the player
lacked diligence in securing a visa or taking the necessary administrative steps with the
Consulate of India in the region. However, it does confirm that both parties encountered
difficulties in securing a visa for the player.
16. In the view of the Chamber, generally speaking, employers, especially professional sports
clubs, may have better experience in dealing with visa processes for their foreign players.
On the other hand, individual players may not be as versed in visa processes. The Chamber
thus considered that the club could also have taken more proactive measures to address
the visa issues rather than suggesting the termination of the contract. The Chamber
observed the evidence on file and noted that the club, instead of offering constructive
solutions or assistance, consistently proposed contract termination without exploring
alternative options to resolve the visa challenges.
17. In this respect, the Chamber referred to the principle of "ultima ratio," according to which
termination should be a last resort after exhausting all other reasonable avenues for
resolution.
18. In the context of the present matter, the Chamber emphasized that the club, in its handling
of visa-related challenges, could have better aligned with the "ultima ratio" principle by
pg. 9
REF. FPSD-12685
actively seeking and proposing alternative measures to address the issues at hand before
contemplating contract termination.
19. Based on the information provided, the Chamber concluded that the club terminated the
contract without just cause. The player is as a result entitled to compensation.
ii. Consequences
20. 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.
21. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to his salary of
October 2023, amounting to INR 251,367.
22. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination, i.e. INR
251,367.
23. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amount as from the due date until the date of effective
payment.
24. 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.
25. 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.
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REF. FPSD-12685
26. 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.
27. 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
from the date of its unilateral termination until its end date. The Chamber established that
the player would earn the following amounts:
Month
November 2023
December 2023
January 2024
February 2024
March 2024
April 2024
May 31, 2024
Total
Monthly Payment (INR)
251,367
251,367
251,367
251,367
251,367
251,367
251,367
1,759,569
28. Consequently, the Chamber concluded that the amount of INR 1,759,569 serves as the
basis for the determination of the amount of compensation for breach of contract.
29. 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.
30. In this regard, the Chamber noted that the player remained unemployed.
31. 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 INR 1,759,569 to the player which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
32. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of the date of the termination until the date of
effective payment.
pg. 11
REF. FPSD-12685
iii. Compliance with monetary decisions
33. 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.
34. 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.
35. 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. 24 par. 2, 4, and 7 of the Regulations.
36. 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.
37. 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.
e. Costs
38. 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.
39. 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.
40. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 12
REF. FPSD-12685
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the claimant, Gaira Joof.
2.
The claim of the Claimant, Gaira Joof, is partially accepted.
3.
The Respondent, Real Kashmir FC, must pay to the Claimant the following amounts:
- INR 251,367 as outstanding remuneration plus 5% interest p.a. as from 11 November
2023 until the date of effective payment;
- INR 1,759,569 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 10 November 2023 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the Bank Account Registration Form.
6.
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 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.
7.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
8.
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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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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