Labour Disputes
Texto da decisão
REF. FPSD-7123
Decision of the
Dispute Resolution Chamber
passed on 27 February 2023
regarding an employment-related dispute concerning
the player WILLIAM OPOKU MENSAH
BY:
Angela Collins, Australia
CLAIMANT:
William Opoku Mensah, Ghana
Represented by Professional Footballers Association of Ghana
RESPONDENT:
Al Musanna SC, Oman
Represented by Hamouda Bouazza
pg. 2
REF. FPSD-7123
I. Facts of the case
1.
On 23 June 2022, the Ghanian player William Opoku Mensah (hereinafter: Claimant or
player) and the Omani club Al Musanna (hereinafter: club or Respondent) allegedly
concluded an employment contract (hereinafter: contract) valid as from the said date until
the end of the sporting season 2023/2024, i.e., 1 July 2024.
2.
The specimen of the contract found on file bears the signature of the player, but not of a
club’s representative.
3.
Pursuant to the contract, the Respondent undertook to pay the Claimant a monthly salary
of USD 2,000 during the season 2022/2023 and USD 2,500 for the season 2023/2023.
4.
Furthermore, the parties agreed on an advance fee of USD 2,500 to be paid to the player
during each season as follows: 50% at the start of the season and 50% during the midseason.
5.
On 11 July 2022, the Omani “Directorate General of passports and residence” granted an
employment visa to the Claimant for the duration of 2 years. In the relevant visa document,
the club appears as the visa’s sponsor.
6.
On 20 July 2022, the Claimant arrived in Oman.
7.
On 5 August 2022, the Claimant sent an email to the Respondent asking the payment of
the salary due for July 2022 while complaining that on 3 August 2022 the Respondent had
instead communicated to be not interested in the Claimant’ services anymore.
Contextually, the Claimant instructed the Respondent to continue with the FIFA Transfer
Matching System (TMS) process and to confirm within 48 hours that the player was part of
the team for the upcoming season.
8.
On 7 August 2022, the Claimant sent another email to the Respondent informing the latter
that he went back home as the club changed his return flight from May 2023 to 7 August
2022 and that he understood that the club did not want him any longer. Nevertheless, the
Claimant insisted on his request for the salary of July and specified that he did not accept
the club’s dismissal as the parties had a valid and binding contract.
9.
According to the information contained in the TMS, on 25 September 2022 the player
signed a new contract with the Egyptian club Zarka, valid until the end of the season
2023/2024 in Egypt.
pg. 3
REF. FPSD-7123
II. Proceedings before FIFA
10. On 19 August 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. In his claim, the player argued that in spite of the lack of the club’s signature on the contract
submitted with the claim, it appears evident that the Respondent signed it because of the
working visa granted under its name as well as because of the flight tickets bought by the
same club for the period between July 2022 and May 2023.
12. Accordingly, the Claimant held that the Respondent failed to comply with its financial
obligations by simply refusing to execute the contract although it was already in force and
binding to the parties.
13. In this context, the Claimant argued that the club’s abusive conduct against the player
forced the latter to change the return flight ticket and move back to his home country on 7
August 2022 as in the player’s view it was clear already that the club would have not
registered him for the relevant sporting season.
14. In this respect, the Claimant held that the contract was prematurely terminated because
of the evident club’s breach, without any just cause.
15. As a consequence, the Claimant stated that the club shall pay the following sums:
•
•
•
•
•
“USD 1,250 as outstanding advance fee (50%).
USD 2,000 as outstanding salary for July 2022.
USD 56,750 as compensation (residual value until the end of the contract).
USD 4,500 as unused paid leave for both seasons.
5% interest p.a. as from the relevant due dates”.
16. Furthermore, the Claimant specified that all the amounts stipulated under the contract
were intended as net in spite of no express reference to it.
b. Position of the Respondent
17. In its reply, the Respondent argued that the Claimant had been simply invited to Oman by
the club in order to undergo a technical and medical test with the latter so that it could
evaluate his adequacy to be part of the Respondent’s team.
pg. 4
REF. FPSD-7123
18. Accordingly, the Respondent held that since the Claimant failed the technical test after his
arrival in Oman, the club decided not to sign the contract and bought for him a flight back
to his home country.
19. In this respect, the Respondent argued that the contract submitted by the Claimant lacks
certain fundamental elements which constitute the essentialia negotii, namely the duration
of the contract, the compensation due in case of early termination and the signature of the
same club.
20. Furthermore, the Respondent denied any probatory value to the issue of a working visa
and of the flight tickets.
21. In conclusion, the Respondent requested to reject the claim in its entirety as it lacks a
contractual basis.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. 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 19 August
2022 and submitted for decision on 27 February 2023. 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.
23. 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), the Single Judge
of the Dispute Resolution Chamber is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
Ghanaian player and an Omani club.
24. 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 (October 2022 edition),
and considering that the present claim was lodged on 19 August 2022, the July 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
pg. 5
REF. FPSD-7123
b. Burden of proof
25. 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
26. 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
27. The foregoing having been established, the Single Judge noted that the parties’ first
fundamental disagreement is whether the document allegedly concluded between the
parties on 23 June 2022 can be considered as a valid and binding employment contract.
28. In view of the foregoing, the Single Judge started by recalling the Football Tribunal’s wellestablished jurisprudence which dictates that, in general, in order for an employment
contract to be considered as valid and binding, apart from the consent of both the
employer and the employee (usually manifested by the signature to the relevant
agreement), it should contain the essentialia negotii of an employment contract, such as the
parties to the contract and their role, the duration of the employment relationship and the
remuneration payable by the employer to the employee.
29. On this note, the Single Judge outlined that the actual signature of the contract is not the
sole or even a necessary element to determine whether there was an existing contractual
relationship between the parties. Instead, the validity and the enforcement of the contract
should be established on the basis of a comprehensive understanding of all the facts and
actions taken by the parties within their context of their relationship. Put differently, the
Single Judge confirmed that the signature requirement is essentially the easiest way that a
party has to prove that their counterparty has entered into a contract; however, she was
comforted to determine in line with the jurisprudence of both the DRC and the Court of
Arbitration for Sport (CAS) that an employment agreement can be materialised with the
wish to be executed, and the signature can be understood as a requirement to prove the
club’s acceptance, but it is not the only evidence.
pg. 6
REF. FPSD-7123
30. In casu, after a thorough analysis of the documentation on file, the Single Judge concluded
that all such elements were included in the document filed by the player, except for the
club’ signature. In this respect, the Single Judge observed that from the specific
circumstances pertaining to the case, it was nevertheless possible to infer the existence of
a binding employment relationship between the parties in dispute, in that other elements
at her disposal on file denoted the parties’ mutual consent to the employment relationship.
31. In particular, the Single Judge noted the existence of a working visa granted by the Omani
Government to the player under the name of the Respondent as sponsor of the latter.
Equally, the Single Judge further observed that the Claimant’s job at the club was expressly
indicated in the mentioned visa, as well as the estimated duration of the working activity
of 2 years.
32. Accordingly, the Single Judge was of the opinion that the Claimant sufficiently proved the
existence of a valid employment relationship between the parties, hence she concluded
that the document produced by the player constitutes a valid and binding contract and
shall be considered in the case at stake, as the contractual basis of the present dispute.
33. With the above in mind, the Single Judge determined that the club acted in an abusive
manner against the player, namely by denying the latter his financial entitlements since the
beginning of the employment relationship and refusing to register him because allegedly
not adequate to the club’s required standards.
34. In this context, the Single Judge wished also to remark that the non-registration of a player
with the relevant FA does not exempt the club of complying with the financial terms of the
contract. In fact, the Single Judge recalled the following excerpt found in the FIFA
Commentary on the Regulations (p. 114), to which she fully adhered:
“The issue of just cause may also occur in connection with players being deregistered or not
registered to play for their clubs. Such situations often arise, for example, when a club has
already used up its entire quota of foreign players but wishes to register another foreign
player. As it has already used up its quota, the club proceeds to deregister a foreign player it
wishes to replace with a new foreign player, without terminating the deregistered player’s
contract.
The jurisprudence provides that the player has just cause to terminate their contract in such
case. As previously mentioned, a club – as an employer – has the duty to protect the
personality rights of the player – as an employee. The career development of a footballer may
be prejudiced as a result of inactivity and thus, the club has a duty to allow its players to
engage in the activity for which they have been in principle employed and are qualified for.
The DRC has already confirmed that “among a player’s fundamental rights under an
employment contract, is not only his right to a timely payment of his remuneration, but also
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REF. FPSD-7123
his right to access training and to be given the possibility to compete with his fellow team
mates in the team’s official matches” and that “by “de-registering” a player, even for a limited
time period, a club is effectively barring, in an absolute manner, the potential access of a
player to competition and, as such, is violating one of his fundamental rights as a football
player” and that therefore “the de-registration of a player could in principle constitute a
breach of contract since it de facto prevents a player from being eligible to play for his club”.
(…)
A similar approach applies to the non-registration of a player. This often happens where a
club does not undertake all the necessary due diligence to determine that a player it has
signed is eligible to be registered to participate in a championship (e.g. due to a specific
foreign player rule, or specific squad size limit).
Again, it is the club’s responsibility to register the player on time. If the registration cannot be
completed, the player will not be able to participate in organised football. Therefore, if it fails
to act, the club is effectively blocking the player’s access to competitive football. This is a
violation of a footballer’s fundamental rights, and gives the player concerned a just cause to
terminate the contract.”
35. Therefore, the Single Judge established that the club acted in breach of the contract, forcing
its premature termination without a just cause and shall pay compensation to the player
in addition to the claimed outstanding remuneration.
ii. Consequences
36. Having stated the above, and bearing in mind the basic legal principle of pact sunt servanda,
which in essence means that agreements must be respected by the parties in good faith,
the Respondent is held liable to pay the Claimant the outstanding amounts deriving from
the contract concluded between the parties, namely USD 3,250, which corresponds to the
advance fee due to the player at the beginning of the season 2022/2023 (USD 1,250) in
addition to the salary due for the month of July 2022 (USD 2,000).
37. In addition, 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 at the
rate of 5% p.a. on the outstanding amounts as from 1 August 2022 until the date of effective
payment.
38. Conversely, the Single Judge decided to reject the Claimant’s request for liquidation of the
unused paid leave as it lacks a legal or contractual basis.
39. 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
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REF. FPSD-7123
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.
40. In application of the relevant provision, the Single Judge held that it first of all had to clarify
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.
41. 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. 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 nonexhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
42. 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
until its term. Consequently, the Single Judge concluded that the amount of USD 56,750
(i.e., the residual value) serves as the basis for the determination of the amount of
compensation for breach of contract.
43. In continuation, the Single Judge verified 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
Single Judge 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.
44. Indeed, the player found new employment with the Egyptian club Zarka. In accordance with
the pertinent employment contract, the player was entitled to approximately EGP 5,000
per month, from 1 October 2022 until 1 May 2024. Therefore, the Single Judge concluded
that the player mitigated his damages in the total amount of EGP 100,000 (approx. USD
3,345), that is, 20 times 5,000.
45. Consequently, on account of all 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
53,405 to the player (i.e., USD 56,750 minus USD 3,345) which was to be considered a
reasonable and justified amount of compensation for breach of contract in the present
matter. For the sake of completeness, the Single Judge outlined that because the
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REF. FPSD-7123
termination at hand took place at the club’s initiative and not the player’s, the Claimant was
not entitled to additional compensation on the basis of art. 17 of the Regulations.
46. Lastly, taking into consideration the player’s request as well as the constant practice of the
Single Judge in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 8 August 2022 until the date of effective payment.
iii. Compliance with monetary decisions
47. 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.
48. 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.
49. 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.
50. 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.
51. 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
52. 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
pg. 10
REF. FPSD-7123
53. 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.
54. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 11
REF. FPSD-7123
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, William Opoku Mensah, is partially accepted.
2.
The Respondent, Al Musanna, must pay to the Claimant the following amount(s):
EUR 3,250 net as outstanding remuneration plus 5% interest p.a. as from 1 August 2022
until the date of effective payment;
USD 53,405 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 8 August 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
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
pg. 12
REF. FPSD-7123
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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pg. 13