Labour Disputes
Texto da decisão
REF FPSD-6183
Decision of the
Dispute Resolution Chamber
passed on 31 August 2022
regarding an employment-related dispute concerning the player Aubin
Kouakou
BY:
Dana Mohamed Al-Noaimi, Qatar
CLAIMANT:
Aubin Kouakou, Ivory Coast
Represented by Tannuri Ribeiro
RESPONDENT:
Al Nasr SC, Libya
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I. Facts of the case
1.
On 6 February 2022, the Ivorian player, Aubin Kouakou (hereinafter: the Claimant),
and the Libyan club, Al Nasr (hereinafter: the Respondent) signed an employment
contract (hereinafter: the Contract) valid as from the same date until the end of the
2021/2022 sporting season in Libya.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant a total remuneration of USD (United States Dollars) 45,000 broken down
as follows:
-
“50% as advance payment”.
“Other 50% split into monthly instalments until the end of the Contract (i.e. USD 3,750
x 6)”.
3.
By correspondence dated 3 March 2022, the Claimant complained to the Respondent
about its failure to provide the Claimant with the relevant flight tickets and working
permits which would have allowed the latter to travel to Libya and join the
Respondent.
4.
Contextually, the Claimant warned the Respondent that, in case of persisting
noncompliance with the above requests, he would have terminated the Contract and
demanded compensation accordingly.
5.
On 25 May 2022, by means of his claim before the Football Tribunal, the Claimant
declared the termination of the Contract.
6.
The Claimant remained unemployed following said termination.
II. Proceedings before FIFA
7.
On 25 May 2022, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
8.
According to the Claimant, the Respondent never complied with its contractual
obligations in spite of having signed the Contract.
9.
In this context, the Claimant also highlighted that the same Respondent uploaded the
Contract in the FIFA Transfer Matching System (TMS) on 8 February 2022.
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10. In particular, the Claimant stated that the Respondent did not pay any part of the
agreed remuneration, nor it has provided the Claimant with the relevant flight tickets
and working permits which were mandatory in order to be granted the access to
Libya.
11. Accordingly, the Claimant held that he had just cause to terminate the Contract and
requested to be awarded the outstanding remuneration and the compensation for
breach of contract by the Respondent, as follows:
-
USD 3,750 due as outstanding remuneration plus interest at a rate of 5% p.a. as of 1
March 2022 until the date of effective payment;
-
USD 3,750 due as outstanding remuneration plus interest at a rate of 5% p.a. as of 1
April 2022 until the date of effective payment;
-
USD 3,750 due as outstanding remuneration plus interest at a rate of 5% p.a. as of 1
May 2022 until the date of effective payment;
-
- a compensation of USD 11,250, plus default interest at a rate of 5% annually as from
25 May 2022 until the date of effective payment;
-
- USD 22,250 due as outstanding remuneration plus interest at a rate of 5% p.a. as of
25 May 2022 until the date of effective payment;
b. Position of the Respondent
12. In spite of having been invited to do so, the Respondent did not file a response to the
claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also
referred to as Single Judge) analysed whether she was competent to deal with the case
at hand. In this respect, she took note that the present matter was presented to FIFA
on 25 May 2022 and submitted for decision on 31 August 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.
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14. 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 (June 2022 edition), she is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between an Ivorian player and a Libyan club.
15. Subsequently, the Single Judge analysed which regulations should be applicable as to
the substance of the matter. In this respect, she confirmed that, in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (June 2022
edition) and considering that the present claim was lodged on 25 May 2022, the March
2022 edition of said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
b. Burden of proof
16. 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
she 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
17. The competence and the applicable regulations having been established, the Single
Judge entered into the merits of the dispute. In this respect, the Single Judge 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 she will refer only to the facts, arguments, and documentary evidence,
which she considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
18. The foregoing having been established, the Single Judge moved to the substance of
the matter, and took note of the fact that on 6 February 2022 the Claimant concluded
an employment contract with the Respondent, valid until the end of the season
2021/2022.
19. In this respect, despite the lack of specific indications regarding the ending date of the
Contract, the Single Judge, thanks to the relevant data retrieved in the FIFA TMS, was
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able to determine that the end of the sporting season 2021/2022 in Libya had been
set for the 1st of July 2022, hence said date shall be deemed as the ending day of the
Contract.
20. In this context, the Single Judge acknowledged that according to the abovementioned
Contract, the Claimant would be entitled to a total remuneration of USD 45,000, 50%
of which should have been paid “in advance” while the remaining part would have
been split into 6 monthly instalments of USD 3,750 each.
21. Noted the above, the Single Judge observed that the Claimant declared to have
unilaterally terminated the Contract with the Respondent on 25 May 2022 due to the
latter’s absolute noncompliance with the financial obligations aforementioned.
22. Furthermore, the Single Judge recalled that according to the Claimant’s claim, the
Respondent also failed to provide the Claimant with a flight ticket and a working
permit, which de facto prevented the Claimant from joining the Respondent’s team in
Libya since the beginning of the Contract.
23. In this respect, the Singe Judge observed that the Respondent failed to present its
response to the claim of the Claimant in spite of having been invited to do so. By not
presenting its position to the claim, the Single Judge was of the opinion that the
Respondent renounced its right of defence and, thus, accepted the allegations of the
Claimant.
24. Furthermore, as a consequence of the aforementioned consideration, the Single
Judge concurred that in accordance with art. 21 par.1 of the Procedural Rules, she
shall take a decision upon the basis of the documentation already on file; in other
words, upon the statements and documents presented by the Claimant.
25. With the above in mind, the Single Judge considered that the main legal issue at stake
is to determine in which date the termination of the Contract by hand of the Claimant
occurred and whether the latter had indeed a just cause to unilaterally terminate the
said Contract.
26. In this regard, the Single Judge observed that the Claimant has never notified the
unilateral termination of the Contract to the Respondent, however, he referred to the
date of the claim as the date of termination.
27. Moreover, the Single Judge recalled that the Claimant requested the FIFA DRC to
impose interests on the demanded sums running as from 25 May 2022, which
corresponds to the date of the claim.
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28. Accordingly, and consistently with the FIFA DRC longstanding practice, the Single
Judge concluded that the day in which the Claimant filed his petition shall be
considered the day of termination.
29. With the above in mind, the Single Judge focused her attention on the circumstances
of the termination in order to assess whether on 25 May 2022 the Claimant had just
cause to unilaterally interrupt the employment relationship with the Respondent.
30. In this respect, the Single Judge acknowledged the Respondent’s conduct, who
apparently never replied to any of the emails sent by the Claimant, nor it provided
him with the flight tickets and visa necessary for his move to Libya.
31. Furthermore, the Single Judge recalled that, according to the Contract, at the moment
of the termination the Respondent held overdue payables towards the Claimant
corresponding to 75% of the total remuneration due under the Contract.
32. In view of the above, the Single Judge determined that on 25 May 2022 the Claimant
had just cause to terminate the Contract because of the Respondent’s significant
breach.
ii. Consequences
33. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
34. The Single Judge observed that the outstanding remuneration at the time of
termination, coupled with the specific requests for relief of the player, are equivalent
to 9 salaries under the contract, amounting to USD 33,750.
35. In particular, the Single Judge estimated that whereas the relevant monthly
instalments due for February 2022, March 2022 and April 2022 (i.e. USD 3,750 x 3 =
USD 11,250) were outstanding at the moment of the termination, the Respondent had
nevertheless failed to pay a further 50% of the total remuneration since this was
stipulated in the Contract as “advance payment”, hence it shall be included to the
outstanding sums as well (i.e. USD 22,500)
36. 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. USD 33,750 (i.e. 10 times USD 3,750).
37. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber in this regard, the Single Judge decided to award the Claimant
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interest at the rate of 5% p.a. on the outstanding amounts as from the relevant due
dates until the date of effective payment.
38. Having stated the above, the Single Judge 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
Single 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 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.
39. In application of the relevant provision, the Single Judge 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 Single Judge established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
40. As a consequence, the Single Judge 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 Single 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.
41. Bearing in mind the foregoing as well as the claim of the player, the Single Judge
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.
Consequently, the Single Judge concluded that the amount of USD 11,250 (i.e. USD
3,750 x 3) serves as the basis for the determination of the amount of compensation
for breach of contract.
42. In continuation, the Single Judge 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 FIFA 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.
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43. However, the Single Judge verified that the player did not find any new employment
with another club during the relevant period of time, hence he failed to mitigate his
damages.
44. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the club must pay the
amount of USD 11,250 to the player (i.e. USD 3,750 x 3), which was to be considered
a reasonable and justified amount of compensation for breach of contract in the
present matter.
45. Lastly, taking into consideration the player’s request as well as the constant practice
of the FIFA DRC in this regard, the Single Judge decided to award the player interest
on said compensation at the rate of 5% p.a. as of 25 May 2022 until the date of
effective payment.
iii. Compliance with monetary decisions
46. Finally, taking into account the applicable Regulations, the Single Judge 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.
47. In this regard, the Single Judge 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.
48. Therefore, bearing in mind the above, the Single Judge 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.
49. 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.
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50. The Single Judge 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
51. 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, the Chamber decided that no procedural costs
were to be imposed on the parties.
52. Likewise and 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.
53. Lastly, the Single Judge concluded its 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, Aubin Kouakou, is accepted.
2.
The Respondent, Al Nasr, has to pay to the Claimant, the following amount:
USD 3,750 (United States Dollars) as outstanding remuneration plus 5% interest
p.a. as from 1 March 2022 until the date of effective payment;
USD 3,750 as outstanding remuneration plus 5% interest p.a. as from 1 April 2022
until the date of effective payment;
USD 3,750 as outstanding remuneration plus 5% interest p.a. as from 1 May 2022
until the date of effective payment;
USD 22,250 as outstanding remuneration plus 5% interest p.a. as from 25 May
2022 until the date of effective payment;
USD 11,250 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 25 May 2022 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
4.
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 the ban shall be of 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.
5. The consequences shall only be enforced at the request of the Claimant in
accordance with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and
Transfer of Players.
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6. 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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