Labour Disputes
Texto da decisão
REF. FPSD-12991
Decision of the
Dispute Resolution Chamber
passed on 21 February 2024
regarding an employment-related dispute concerning
the player Omar Moussa
BY:
Stefano SARTORI (Italy)
CLAIMANT:
Omar Moussa, Burundi
RESPONDENT:
Sofapaka FC, Kenya
pg. 2
REF. FPSD-12991
I. Facts of the case
1. The player and SOFAPAKA FC concluded an employment contract valid as from 1 August
2023 until 1 August 2024.
2. Following art. 4 of the contract, the player was entitled to USD 1,300 per month.
3. On 13 October 2023, the player sent a default notice, requesting the payment of USD 2,600,
corresponding to his salaries of September and October 2023, and referred to art. 14 bis
RSTP. The player granted 15 days to remedy the default.
4. On 29 November 2023, the player sent a termination letter, noting that “it is crystal clear”
that the club is in persistent failure on the financial duties.
5. Following TMS, the player transferred on 18 January to the Burundian club, Musongati FC.
6. Accordingly, the player concluded an employment contract valid for 6 monhts and was
entitled to BIF (Burundian Franc) 2,000,000 (approx. USD 700).
II. Proceedings before FIFA
7. On 10 December 2023, the player lodged a claim before for breach of contract
without just cause and requested the payment of the following amounts, plus
interest:
Description
Outstanding Renumeration Payment
1st Payment – due on 1st October 2023
2nd Payment – due on 1st November 2023
Compensation due to Termination with Just
Cause
Additional Compensation
Amount
USD 2,600
USD 1,300
USD 1,300
USD 11,700 (i.e. Nov. 23 to
Jul. 24)
USD 3,900
8. The club failed to provide its reply.
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REF. FPSD-12991
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, it took note that the present matter was presented to FIFA on 10 December
2023 and submitted for decision on 21 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 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 (May 2023 edition), 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 Burundian player and a Kenyan club.
3.
Subsequently, the 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 (May 2023 edition), and
considering that the present claim was lodged on 10 December 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 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 Judge 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 Judge entered
into the merits of the dispute. In this respect, the Judge started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
the Judge emphasised that in the following considerations it will refer only to the facts,
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REF. FPSD-12991
arguments and documentary evidence, which it considered pertinent for the assessment
of the matter at hand.
i. Main legal discussion and considerations
6.
The foregoing having been established, the Judge moved to the substance of the matter,
and took note of the fact that the parties concluded a contract valid as from 1 August 2023
until 1 August 2024 and that, on 29 November 2023, the player terminated the contract
after having put the club in default for outstanding salaries.
7.
Subsequently, the DRC judge took into account that the Respondent, for its part, failed to
present its response to the claim of the Claimant, despite having been invited to do so. In
this way, so the DRC judge deemed, the Respondent renounced its right to defence and,
thus, accepted the allegations of the Claimant.
8.
The Single Judge 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).
9.
The Single Judge noted that the Claimant claims not having received his remuneration
corresponding to the months of September and October 2022. Furthermore, the Single
Judge noted that the Claimant has provided written evidence of having put the Respondent
in default on 13 October 2023, i.e. at least 15 days before unilaterally terminating the
contract on 29 November 2023.
10. Thus, the Single Judge concluded that the Claimant had a just cause to unilaterally
terminate the contract, based on art. 14bis of the Regulations.
ii. Consequences
11. Having stated the above, the Single Judge turned their attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
12. 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 September,
October and November 2023, i.e. USD 3,900 (1,300*3)
13. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the 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 3,900, as
stated above.
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REF. FPSD-12991
14. 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 the due dates until the date of effective
payment.
15. 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.
16. 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 Judge established
that no such compensation clause was included in the employment contract at the basis
of the matter at stake.
17. As a consequence, the members of 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 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.
18. 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 Judge
concluded that the amount of 9, 10,400 (i.e. the salaries from December 2023 until July
2024, i.e. 1,300*8 = USD 10,400) serves as the basis for the determination of the amount
of compensation for breach of contract.
19. In continuation, the 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
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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REF. FPSD-12991
20. Indeed, the player found employment with Musongati FC. In accordance with the pertinent
employment contract, the player was entitled to approximately USD 700. Therefore, the
Judge concluded that the player mitigated his damages in the total amount of USD 700.
21. Subsequently, the 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 the case at hand, the Judge confirmed that the contract
termination took place due to said reason i.e. overdue payables by the club, and therefore
decided that the player shall receive additional compensation.
22. In this respect, the Judge decided to award the amount of additional compensation of USD
USD 1,300*3 = USD 3,900, i.e. three times the monthly remuneration of the player.
23. However, the Judge noted that, as per art. 17 par. 1 ii of the Regulations, “The overall
compensation may never exceed the rest value of the prematurely terminated contract.
24. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Judge decided that the club must pay the amount of
USD 10,400 to the player, corresponding to the residual value of the terminated contract,
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 player’s request as well as the constant practice of the
Judge 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 termination until the date of effective payment.
iii. Compliance with monetary decisions
26. Finally, taking into account the applicable Regulations, the 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 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.
28. Therefore, bearing in mind the above, the 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
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REF. FPSD-12991
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 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 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 Judge decided that no procedural costs were to be imposed on the
parties.
32. Likewise, and for the sake of completeness, the 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 Judge concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-12991
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Omar Moussa, is partially accepted.
2.
The Respondent, SOFAPAKA FC, must pay to the Claimant the following amounts:
- USD 3,900 as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount of USD 1,300 as from 1 October 2023 until the date of effective payment;
- 5% interest p.a. over the amount of USD 1,300 as from 1 November 2023 until the date of effective payment;
- 5% interest p.a. over the amount of USD 1,300 as from 1 December 2023 until the date of effective payment.
- USD 10,400 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 29 November 2023 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
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REF. FPSD-12991
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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