Labour Disputes
Texto da decisão
REF FPSD-4001
Decision of the
Dispute Resolution Chamber
passed on 27 January 2022
regarding an employment-related dispute concerning the player Cedric Platini Kaham
BY:
Clifford J. HENDEL (USA & France), Deputy Chairperson
Stijn BOEYKENS (Belgium), member
André DOS SANTOS MEGALE (Brazil), member
CLAIMANT:
Cédric Platini Kaham, Cameroon
RESPONDENT:
Nasarawa United, Nigeria
REF FPSD-4001
I. Facts
1. According to the information contained in the Transfer Matching System (TMS), on 30 July 2020,
Cedric Platini Kaham and Nasarawa United concluded an employment contract valid as from the date
of signature until 30 July 2023 (i.e. 3 years)
2. According to art. 7.1 of the contract, the player was entitled to NGN 300,000.
3. According to the documentation provided by the player (“project of employment contract”), on 3
December 2020, the parties agreed upon a contract valid as from the aforementioned date until 3
December 2023.
4. Following the information contained in TMS, the player was registered with the Respondent on 17
December 2020.
5. On 27 September 2021, the player, via his lawyer, sent a default notice:
“However, it appears that the Club seriously breached its contractual obligations to my client.
Firstly, my client has not received yet any copy of the Contract.
Furthermore, to date, the Club has only paid NGN 1,049,860 to my client, leaving an outstanding
balance of NGN 3 850 140 (hereinafter: the "Outstanding Remuneration").
In addition, the Club failed to summon my client for the start of the new season and failed to provide
my client with a flight ticket back to Nigeria.
In view of the foregoing, I kindly invite the Club to :
i. immediately provide my client with a copy of the Contract;
ii. immediately provide my client with a flight ticket to Nigeria and inform him about the training
programme;
iii. pay him within 15 days the Outstanding Remuneration plus the salary for September 2021.”
6. On 12 October 2021, the player, via his lawyer, sent a termination letter:
“I refer to my letter below, which appears to have remained unanswered.
Therefore, considering that no payment has been made in the meantime and on behalf of Mr. Cédric
Platini Kaham, I hereby notify you of the termination for just cause of the employment contract
concluded on 3 December 2020.”
7. The player stated that he remained unemployed following the termination of the contract.
8. On 15 October 2021, Cedric Platini Kaham lodged a claim before FIFA for outstanding
remuneration and breach of contract without just cause, and requested the payment of the
following amounts:
- NGN 4,450,140 as outstanding remuneration, corresponding to the sign-on bonus, as well as
outstanding salaries from December 2020 until September 2021, plus 5% interest p.a. as from
the due dates.
- NGN 7,800,000 as compensation for breach of contract without just cause, plus 5% interest
p.a. as from 12 October 2021.
9. According to the player, the club only paid NGN 1,049,860 and that the outstanding amount
corresponds to almost 15 months of salaries.
10. In its reply to the claim, the Respondent denied that there was any breach of contract.
REF FPSD-4001
11. However, the Respondent argued that it did not pay the player between August until October 2021
since he left the country “without a travel”.
12. In addition, the Respondent explained that the player did not open a bank account.
13. The Respondent insisted that the contract was valid from 30 July 2020 until 30 July 2023.
14. In his replica, the player insisted that the contract was valid from 3 December 2020 until 3
December 2023.
15. According to the player, the contract provided by the club is a forgery.
16. Moreover, the player argued that the registration of the contract was made for the period
comprised between 3 December 2020 until 3 December 2023 (cf. Exhibit 8 of the Replica).
17. The player noted that “As stated in the claim, the Club agreed with the Player that a signing bonus
of NGN 2,500,000 would be paid to him. The Club then provided the Player with an incomplete copy
of the
Contract which did not contain this amount”
18. However, according to the player, the club acknowledged the existence of this bonus as follows:
- Through a WhatsApp message of 21 September 2021 (Exhibit 9) ;
- By means of the formal notice of 26 September 2021 (Exhibit 3).
19. The player further denied that he was absent without justification.
20. In sum, the player requested the payment of the total outstanding amount of NGN 4,450,150, plus
5% interest
p.a. as from the due dates., as well as NGN 7,800,000 as compensation, plus 5% interest p.a as from
12 October 2021.
21. On a subsidiary basis, the player requested the payment of outstanding remuneration in the amount
of NGN 5,650,140 and NGN 6,000,000 as compensation.
22. As final comments, the club explained that sign-on fees are banned in Nigeria since January 2014 .
23. In addition, the club considered that player did not discharge his burden of proof.
24. In this regard, the club argued that “the WhatsApp messages submitted as evidence by the
Claimant in support of its allegations mainly consists of 'third party evidence', the authenticity of
which could not be verified with certitude.”
25. As to the alleged absence, the club explained that the player never gave a notice in writing.
26. In sum, the club requested the following:
a. AN ORDER that the CLAIMANT SHOULD RESUME to his place of work.
b. The RESPONDENT has agreed to pay the sum of three months outstanding
REF FPSD-4001
salaries N900,000.00 AND another payment from January till July 2021 NGNl,050,000.00 (One Million
and Fifty thousand Naira only)
c. The payments of the CLAIMANTS ··salaries of NlS0,000.00 for six months i.e for the period of July
2020 to December 2020) total N900,000.00
d. The RESPONDENT refutes the claim of the signing on fees and provision of air tickets to the
CLAIMANT to resume work.
REF FPSD-4001
II.
Considerations of the Dispute Resolution Chamber
a.
Competence and applicable legal framework
1.
First of all, the Dispute Resolution Chamber 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
October 2021 and submitted for decision on 27 January 2022. Taking into account the wording of
art. 34 of the October 2021 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 Dispute Resolution Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of
the Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art.
22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players (August 2021 edition), it 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.
Subsequently, the Dispute Resolution 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 (August 2021 edition), and
considering that the present claim was lodged on 15 October 2021, the August 2021 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b.
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.
5.
Burden of proof
Merits of the dispute
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 abovementioned 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.
REF FPSD-4001
i. Main legal discussion and considerations
6.
In relation to the facts, the Chamber noted that, according to the information contained in the
TMS, on 30 July 2020, Cedric Platini Kaham and Nasarawa United concluded an employment
contract valid as from the date of signature until 30 July 2023.
7.
However, the Chamber observed that, according to the Claimant, the contractual relationship
between the parties was valid as from 3 December 2020 until 3 December 2023.
8.
In this respect, the Chamber observed that, in support of his allegations, the Claimant provided a
document referred to a “project of employment contract”, dated 3 December 2020 with an
expiration date until 3 December 2023.
9.
In addition, the Chamber observed that, following the information contained in TMS, the player
was registered with the Respondent on 17 December 2020.
10. In this respect, the Chamber observed that, indeed, the duration of the contract as available in TMS
(30 July 2020 – 30 July 2023) is not fully consistent with the registration date of the player.
However, considering that only the contract as available in TMS is the only one that was signed by
both parties, the Chamber assumed that it could only rely on said document as the basis of the
contractual relationship between the parties. Hence, the Chamber assumed that the parties were
bound by a contractual relationship valid as from 30 July 2020 until 30 July 2023.
11. The foregoing being established, the Chamber went on to analyse the substantive part of the Claim
of the player.
12. In this respect, the Chamber noted that the Claimant lodged a claim before FIFA for outstanding
remuneration and breach of contract without just cause, arguing that he terminated the contract
on 12 October 2021 due to the existence of, inter alia, outstanding salaries from December 2020
until September 2021.
13. Conversely, the Chamber took note of the position of the Respondent, according to which it
acknowledged that it did not pay the player since we was allegedly absent between August until
October 2021.
14. In relation to said last argument, the Chamber observed that, however, the Respondent failed to
support its argument with any reliable documentary evidence. As a result, considering that the
Respondent failed to discharge its burden of proof, the Chamber could not accept the argument
of the Respondent.
15. In this regard, the Chamber observed that the player was entitled to NGN 300,000 per month,
meaning that that, until the termination of the contract on 12 October 2021, he was entitled to
the following:
REF FPSD-4001
August 2020 – September 2021 = 14*300,000 = 4,200,000
16. Moreover, the Chamber took note of the fact that the player acknowledged having received NGN
1,049,860, leaving an outstanding amount of NGN 3,150,140 (i.e. 4,200,000 – 1,049,860).
17. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in accordance
with which, if a club unlawfully fails to pay a player at least two monthly salaries on their due dates,
the player will be deemed to have a just cause to terminate his contract, provided that he has put
the debtor club in default in writing and has granted a deadline of at least 15 days for the debtor
club to fully comply with its financial obligation(s). In this respect, the Chamber noted that the
player, via his lawyer, sent a default notice on 27 September 2021, granting 15 days to remedy the
default, and that the contract was terminated on 12 October 202.
18. In view of the above, and considering that, at the date of termination of the contract, the club
owed an amount that is equivalent to at least ten monthly salaries, the Chamber confirmed that,
in accordance with its longstanding jurisprudence for similar matters, the club seriously neglected
its financial obligations and that, as a result, the player is entitled to compensation, as well as to
the payment of any outstanding remuneration due up to the date of termination of the Contract.
19. 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. NGN 3,150,140, as explained
in the previous paragraphs.
20. Furthermore, the Chamber also noted that the Claimant requested the payment of a sign-on bonus
in the amount of NGN 2,500,000. However, insofar said bonus was not stipulated in the contract
as available in the TMS, the Chamber was not in a position to accept the Claimant’s argument in
this regard.
21. 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 amounts as from the due dates until the date of effective payment.
ii. Consequences
22. Having stated the above, the members of the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
23. In continuation, having established that the Respondent is to be held liable for the termination of
the contract with just cause by the Claimant, the Chamber decided that, in accordance with art.
17 par. 1 of the Regulations, the club is liable to pay compensation to the player.
24. In this respect, the Chamber focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the members of the Chamber
REF FPSD-4001
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 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 Chamber established that no such compensation
clause was included in the employment contract at the basis of the matter at stake.
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 nonexhaustive 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.
27. The members of the Chamber then turned their attention to the remuneration and other benefits
due to the player under the existing contract and/or the new contract, which criterion was
considered by the Chamber to be essential. The members of the Chamber deemed it important
to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into
account both the existing contract and the new contract in the calculation of the amount of
compensation.
28. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable
to the player under the terms of the employment contract as from its date of termination with just
cause, i.e. 12 October 2021 until 31 July 2021, and concluded that the Claimant would have
received in total NGN 6,900,000 [i.e. 300,000*23]. Consequently, the Chamber concluded that
the amount of NGN 6,900,000 serves as the basis for the final determination of the amount of
compensation for breach of contract in the case at hand.
29. In continuation, the Chamber 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. According to the constant practice of the DRC, 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 respect, the Chamber verified that the player did not conclude any new contract afterwards.
REF FPSD-4001
31. Consequently, on account of all of the above-mentioned considerations and the specificities of the
case at hand, the Chamber decided to partially accept the player’s claim and that the club must
pay the amount of NGN 6,900,000 as compensation for breach of contract in the case at hand.
32. In addition, taking into account the Claimant’s request as well as the constant practice of the
Dispute Resolution Chamber in this regard, the Chamber decided that the Respondent must pay to
the Claimant interest of 5% p.a. on the aforementioned amount as of the date of the claim.
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 Chamber 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 Chamber decided that the club must pay the full amount
due (including all applicable interest) to the player within 45 days of notification of the decision,
failing which, at the request of the creditor, 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 club in accordance with art. 24 par. 2, 4, and 7
of the Regulations.
36. The Chamber 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
37. 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.
38. Furthermore, 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.
39. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
REF FPSD-4001
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Cedric Platini Kaham, is partially accepted.
2.
The Respondent, Nasarawa United, has to pay to the Claimant, the following amounts:
- NGN 3,150,140 as outstanding remuneration plus interest as follows:
- 5% interest p.a. over the amount of NGN 150,140 as from 1 December 2020 (rest of the salary of November 2020) until the date of effective payment;
- 5% interest p.a. over the amount of NGN 300,000 as from 1 January 2021 (salary of December 2020) until the date of effective payment;
- 5% interest p.a. over the amount of NGN 300,000 as from 1 February 2021 (salary of January 2021) until the date of effective payment;
- 5% interest p.a. over the amount of NGN 300,000 as from 1 March 2021 (salary of February 2021) until the date of effective payment;
- 5% interest p.a. over the amount of NGN 300,000 as from 1 April 2021 (salary of March 2021) until the date of effective payment;
- 5% interest p.a. over the amount of NGN 300,000 as from 1 May 2021 (salary of April 2021) until the date of effective payment;
- 5% interest p.a. over the amount of NGN 300,000 as from 1 June 2021 (salary of May 2021) until the date of effective payment;
- 5% interest p.a. over the amount of NGN 300,000 as from 1 July 2021 (salary of June 2021) until the date of effective payment;
- 5% interest p.a. over the amount of NGN 300,000 as from 1 August 2021 (salary of July 2021) until the date of effective payment;
- 5% interest p.a. over the amount of NGN 300,000 as from 1 September 2021 (salary of August 2021) until the date of effective payment;
- 5% interest p.a. over the amount of NGN 300,000 as from 1 October 2021 (salary of September 2021) until the date of effective payment;
- NGN 6,900,000 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 15 October 2021 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
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 (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1.
2.
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.
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 Claimant 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
REF FPSD-4001
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).
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