Labour Disputes
Texto da decisão
REF FPSD-7614
Decision of the
Dispute Resolution Chamber
passed on 14 December 2022
regarding an employment-related dispute concerning the player
Alvin Maccornel
BY:
Iñigo Riestra (Mexico), Single Judge of the Dispute Resolution Chamber
CLAIMANT:
Alvin Maccornel, Liberia
Represented by Mr Dabbous Mokhtar
RESPONDENT:
Al Diwaniyah SC, Iraq
Represented by Taaziz Sport Disputes
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I. Facts of the case
1.
On 15 January 2022, the Liberian player, Alvin Maccornel (hereinafter: the Claimant), and
the Iraqi club, Al Diwaniyah SC (hereinafter: the Respondent) signed an employment
contract (hereinafter the Contract) valid as from the date of signature until 15 July 2022.
2.
In accordance with art. 2 of the Contract, the Respondent undertook to pay to the
Claimant a signature bonus of USD 20,000 on 15 January 2022.
3.
Furthermore, in accordance with the same provision, the Respondent undertook to pay
the Claimant six monthly instalments of USD 3,300.
4.
Moreover, art. 2 also stipulated that the total value of the Contract amounted to
USD 40,000.
5.
By correspondence dated 1 April 2022, the Claimant put the Respondent in default of
payment of USD 29,900, corresponding to three monthly salaries and the signature bonus
of USD 20,000, setting a time limit expiring on 16 April 2022 in order to remedy the default.
6.
By correspondence dated 22 April 2022, the Claimant put the Respondent in default of
payment of USD 23,900, outlining that he had received a payment of USD 6,000, but
alleging that the remaining amounts had still not been paid. The Claimant extended the
deadline for payment for another 48 hours, to no avail.
7.
On 27 April 2022, the Claimant terminated the Contract.
8.
On 4 July 2022, the Claimant and the Iraqi club, Basra Oil Sports Club (hereinafter: the New
Club) signed an employment contract (hereinafter the New Contract) valid as from
1 September 2022 until 1 July 2023.
9.
In accordance with the New Contract, the Claimant is entitled to receive a monthly
remuneration of USD 4,500.
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II. Proceedings before FIFA
10. On 27 September 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
11. According to the Claimant, the Respondent failed to pay several monthly salaries, as well
as the signature bonus which accounted for more than half of the contractual value,
despite having been put in default and granted 15 days to remedy the contractual breach.
12. The Claimant, therefore, contested that he had just cause to terminate the Contract.
13. The requests for relief of the Claimant were as follows:
-
USD 20,000, corresponding to the signature bonus due on 15 January 2022;
-
USD 9,900, corresponding to three unpaid salaries as from January 2022 until
the date of termination;
-
USD 29,900 as compensation, corresponding to the alleged residual value of the
Contract.
14. The Claimant also requested interest of 5% p.a. for the compensation only as from the
dates of the prospective instalments, making up the residual value of the Contract, until
the date of effective payment.
b. Position of the Respondent
15. Despite having been invited to do so, the Respondent failed to submit a reply to the
present claim.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether he was competent to deal with the case at hand. In
this respect, he took note that the present matter was presented to FIFA on 27 September
2022 and submitted for decision on 14 December 2022. Taking into account the wording
of art. 34 of the October 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.
2.
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 October 2022 edition), he is competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Liberian player and an Iraqi club.
3.
Subsequently, the Single Judge 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 (October 2022
edition), and considering that the present claim was lodged on 27 September 2022, the
July 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
b. Burden of proof
4.
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, he 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. Merits of the dispute
5.
Its 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.
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i. Main legal discussion and considerations
6.
The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the basis of the dispute was the lawfulness of the
contractual termination by the Claimant.
7.
In this context, the Single Judge recalled that the Claimant argued that he was not paid
more than three monthly salaries, as well as the signature bonus which accounted for
more than half of the value of the Contract, despite having put the Respondent in default
of payment and granted a deadline of 15 days to remedy the alleged breach.
8.
Furthermore, the Claimant had acknowledged a payment of only USD 6,000 made by the
Respondent, prior to the termination of the Contract, meaning that the allegedly
outstanding amount at the time the Contract was terminated amounted to USD 23,900.
9.
The Single Judge also observed that the Respondent, despite having been put in default
of payment of the stipulated amounts which were contractually due, had not provided
any response to the claim, on account of which the allegations of non-payment were
taken as uncontested.
10. Having taken note of the above, the Single Judge referred to the wording of art. 14 of the
Regulations, pursuant to which a player may terminate his employment contract where
there is just cause to do so. Similarly, the Single Jude referred to par. 2 of said provision,
in accordance with which just cause arises where the abusive conduct of one party is
aimed at forcing the counterparty to terminate or amend the terms of the Contract.
11. Taking into account all of the above, the Single Judge established that the Respondent’s
failure to pay not only the sign-on fee of USD 20,000, which accounted for more than half
of the value of the Contract, as well as more than one monthly salary at the time the
Contract was terminated, constituted a persistent and severe breach of the Contract,
giving rise to just cause to terminate for the Claimant.
12. Therefore, the Single Judge concluded that the Claimant had just cause to terminate the
Contract.
ii. Consequences
13. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
14. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, is equivalent to USD 23,900 (i.e.
3 times USD 3,300 plus USD 20,000 minus USD 6,000).
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15. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Single Judge 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 23,900.
16. In addition, considering that the Claimant did not request interest on the outstanding
remuneration, in accordance with the general legal principle of ne ultra petita, the Single
Judge did not award any interest on said amount.
17. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent 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.
18. In application of the relevant provision, the Single Judge held that it first of all had to clarify
as to whether the 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, he established that no such
compensation clause was included in the Contract.
19. As a consequence, the Single 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 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.
20. Bearing in mind the foregoing as well as the claim of the Claimant, 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 10,100 (i.e. USD 40,000 minus
USD 29,900 or the residual value of the Contract) serves as the basis for the determination
of the amount of compensation for breach of contract.
21. In continuation, the Single 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. According to the
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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.
22. Indeed, the Claimant found employment with the New Club. In accordance with the New
Contract, the Claimant was entitled to USD 4,500 per month. Therefore, the Single Judge
concluded that the player mitigated his damages in the total amount of USD 1,597, that
is, for the overlapping period between the two contracts – 4 July 2022 until 15 July 2022,
USD 4,500 times (11/31).
23. Subsequently, the Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables in accordance with art. 14bis of the Regulations. In the case at
hand, the Single Judge confirmed that the contract termination did not take place due to
said reason, and thus decided not to award any additional compensation.
24. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the Respondent must pay
the amount of USD 8,503 to the Claimant (i.e. USD 10,100 minus USD 1,597), which was
to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
25. Lastly, taking into consideration the Claimant’s request as well as the constant practice of
the Single Judge in this regard, the latter decided to award the Claimant interest on said
compensation at the rate of 5% p.a. as of 27 September 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
26. 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.
27. 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.
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28. 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.
29. 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.
30. 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
31. 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.
32. 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.
33. 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, Alvin Maccornel, is partially accepted.
2.
The Respondent, Al Diwaniyah SC, has to pay to the Claimant, the following amount:
- USD 23,900 as outstanding remuneration;
- USD 8,503 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 27 September 2022 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, 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.
6. 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.
7. 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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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