Labour Disputes
Texto da decisão
REF FPSD-4867
Decision of the
Dispute Resolution Chamber
passed on 8 March 2022
regarding an employment-related dispute concerning the player Jean Mousté
BY:
Alejandro Atilio Taraborrelli (Argentina & Italy)
CLAIMANT:
Player Jean Mousté, Guinea
Represented by Elite Law SA
RESPONDENT:
Al-Diwania, Iraq
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I.
Facts of the case
1.
In August 2021, the Guinean player Jean Mousté (hereinafter the Claimant or the player) and the
Iraqi club Al-Diwania (hereinafter the Respondent or the club) concluded employment agreement
(hereinafter the Employment Agreement), valid as from 15 August 2021 until 1 August 2023.
2.
In Clause 2 of the Employment Agreement, the Claimant and the Respondent (jointly referred to
as the Parties) agreed upon, inter alia, the following financial terms:
“The first party [i.e. the Respondent] shall pay to the second party [i.e. the Claimant] the value
of the contract 45,000$
for every season is divided
As follows:
a-The first payment of$ 15,000 when the second party reach Iraq and successfully complete
the medical examination
b-And 10,000$ the amount between the two periods of the season.
c-And from 01/11/2021 to 01/08/2022 as monthly salary 2,000$”
3.
Furthermore, in Clause 3 of the Employment Agreement, the Parties stipulated that “[t]he first
party shall guarantee the appropriate housing and food for the second party.”
4.
On 13 August 2021, the Respondent announced via its social media that the Claimant signed the
Employment Agreement with the club. In the due course, the Claimant was also registered with
the Respondent’s federation.
5.
On 28 September 2021, the Claimant arrived in Iraq and, after receiving the visa, he started
training and playing matches for the Respondent.
6.
On 25 October 2021, the Claimant sent a default notice to the Respondent, requesting the “signon” payment of USD 15,000 and a monthly salary of USD 2,000 due on 1 November 2021,
however, to no avail.
7.
On 18 November 2021, the Claimant sent a second notice to the Respondent, reiterating his
request. Furthermore, the Claimant further requested “accommodation and meals according to
clause 3 of the Contract as the Club had meanwhile stopped to providing them to the Player”.
8.
In the same letter, the Claimant “firmly condemned the fact that the Club confiscated the
Claimant's passport”.
9.
The Respondent failed to reply to the second notice.
10. On 17 December 2021, the Claimant sent a termination notice (hereinafter the Termination
Notice) to the Respondent.
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11. On 20 December 2021, “considering the lack of the cooperation by the Respondent and the
impossibility for the Player to leave Iraq without his documents”, the Claimant requested FIFPro's
assistance to recover his passport.
12. On 28 December 2021, the Claimant received his passport back from the Respondent and on
31 December 2021 he flew back to his home country.
13. The Claimant informed the FIFA administration that he did not sign a new employment contract.
II. Proceedings before FIFA
14. On 19 January 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
15. In its claim, the Claimant requested an outstanding remuneration in the amount of USD 20,097,
plus 5% interest p.a. from the due dates until the date of the effective payment:
-
5% interest p.a. on USD 15,000 as of 28 September 2021;
5% interest p.a. on USD 2,000 as of 1 November 2021;
5% interest p.a. on USD 2,000 as of 1 December 2021;
5% interest p.a. on USD 1,097 as of 18 December 2021.
16. Furthermore, the Claimant requested compensation in the amount of USD 69,903 and, in case of
mitigated compensation, an additional compensation of USD 22,500, plus 5% interest p.a. from
18 December 2021 until the date of the effective payment.
17. The Claimant pointed out to the legal principle pacta sunt servanda, agreements must be
respected by the parties in good faith and argued that whereas the Claimant complied with his
obligations under the Employment Agreement to the complete satisfaction of the Respondent,
the latter has always failed to respect its main financial obligation.
18. Furthermore, the Claimant asserted that since he “started to legitimately complain, the Club
withdrew the benefits of accommodation and meals - being also specified that, when they were
provided, they were far from the necessities of a professional athlete - and confiscated his passport
infringing in this way his personal rights.”
19. The Claimant continued that when he decided to send the Termination Notice, the amount of
USD 19,000 was outstanding, i.e. an amount “over the two months salaries required by the FIFA
RSTP to justify a termination.”
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20. Having also respected the “15 (fifteen) days without any payment from [the Respondent], both
from the First and Second Notice, [the Claimant] obviously had just cause to terminate the
Contract”.
21. Finally, the Claimant added that not only due to the financial breach, but also since the
Respondent “violated his fundamental rights in such a blatant way, by suspending the food and
accommodation and confiscating his passport, that such misconducts supported [the Claimant’s]
choice. It is obvious that in such circumstances [the Claimant] completely lost any trust in his
employer.”
22. In view of the above, the Claimant requested the outstanding remuneration in the amount of
USD 20,097, corresponding to the following amounts:
-
USD 15,000 as sign-on-fee;
USD 2,000 due on 1 November 2021 as monthly salary;
USD 2,000 due on 1 December 2021 as monthly salary;
USD 1,097 as a pro rata corresponding to the monthly salary due on 1 January 2022.
23. Furthermore, the Claimant requested compensation in accordance with art. 17 of the Regulations,
in the amount of USD 69,903, corresponding to the following amounts:
- USD 903 corresponding to the remaining monthly salary due on 1 January 2021;
- USD 24,000 as remaining part of the season 2021/2022;
- USD 45,000 as remuneration for the season 2022/2023.
24. The Claimant also argued that “the DRC shall note the undisputable existence of egregious
circumstances related to (i) the cessation of the provision of accommodation and foods although
contractually provided for (ii) and - above all - the unlawfully confiscation of the Player's passport.”
25. In view of all the above, and should he sign a new contract at a new club covering the original
duration of the Employment Agreement, “the FIFA DRC shall grant him the Additional
Compensation as per article 17(1)(ii.) of the FIFA RSTP for the amount of USD 22,500, equal to the
maximum 6 (six) monthly salaries.”
b. Position of the Respondent
26. Despite being invited to do so, the Respondent failed to reply to the claim.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as the
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 19 January 2022 and submitted
for decision on 8 March 2021. 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.
28. 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 (March 2022 edition), he is competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between a
Guinean player and an Iraqi club.
29. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and
2 of the Regulations on the Status and Transfer of Players (March 2022 edition), and considering
that the present claim was lodged on 19 January 2022, the August 2021 edition of said regulations
(hereinafter the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
30. 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 he 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
31. His 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, 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
32. The foregoing having been established, the Single Judge moved to the substance of the matter
and noted that this is a claim of a player against a club concerns a termination of an employment
agreement. Furthermore, the Single Judge took note of player’s allegations that he had just cause
to terminate the employment relationship due to the outstanding amounts.
33. In this context, the Single Judge acknowledged that his task was to determine, based on the
evidence presented by the Parties, whether the claimed amounts had, in fact, remained unpaid
by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of the Regulations
had in fact been fulfilled as alleged by the Claimant.
34. Referring 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).
35. In this respect, the Single Judge noted that the Claimant claims not having received his
remuneration corresponding to two monthly salaries and an additional sign-on fee payment.
However, the Claimant failed formally grant the Respondent 15 days in his default notice.
Therefore, whereas the Single Judge believed art. 14bis of the Regulations should not apply, he
concluded that the termination was with just cause under art. 14 of the Regulations.
36. In this respect, the Single Judge noted that it can indeed be established that there were overdue
payables amounting to more than two monthly salaries. Moreover, the Single Judge noted that
the Respondent bore the burden of proving that it indeed complied with the financial terms of
the contract concluded between the Parties. Nonetheless, the Single Judge also acknowledged
that the Respondent failed to do so (see para. II./b.).
37. What is more, considering the circumstances in the matter at hand, e.g. confiscation of Claimant’s
passport and further Claimant’s allegations which remained uncontested, the Single Judge
concluded that the Claimant terminated the employment relationship with just cause, in
accordance with art. 14 of the Regulations.
ii. Consequences
38. Having stated the above, the members of the Single Judge turned their attention to the question
of the consequences of such unjustified breach of contract committed by the Respondent.
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39. The Single Judge observed that it remained undisputed by the Respondent that the outstanding
remuneration at the time of termination, coupled with the specific requests for relief of the player,
amount to USD 20,097:
-
USD 15,000 corresponding to the sell-on fee;
USD 2,000 for the salary due in November;
USD 2,000 for the salary due in December;
USD 1,097 pro rata 17 days for the salary due in January.
40. 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 20,097.
41. In addition, taking into consideration the Claimant’s request as well as the constant practice of
the Dispute Resolution Chamber in this regard, the Single Judge decided to award the Claimant
interest at the rate of 5% p.a. on the outstanding amounts as follows:
- USD 15,000 plus 5% interest p.a. on as of 29 September 2021 until the date of the effective
payment;
- USD 2,000 plus 5% interest p.a. as of 2 November 2021;
- USD 2,000 plus 5% interest p.a. as of 2 December 2021;
- USD 1,097 plus 5% interest p.a. as of 18 December 2021.
42. 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.
43. In application of the relevant provision, the Single Judge held that he 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.
44. 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 nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
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45. In this respect, the Single Judge noted that the player remained unemployed since the unilateral
termination of the contract.
46. The Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case the
player did not sign any new contract following the termination of his previous contract, as a
general rule, the compensation shall be equal to the residual value of the contract that was
prematurely terminated.
47. In this respect, the Single Judge decided to award the player compensation for breach of contract
in the amount of USD 69,903, as the residual value of the contract.
48. Lastly, taking into consideration the player’s request as well as the constant practice of the Dispute
Resolution Chamber in this regard, the Single Judge decided to award the player interest on said
compensation at the rate of 5% p.a. as of 18 December 2021 until the date of effective payment.
iii. Compliance with monetary decisions
49. 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 his 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.
50. 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.
51. 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.
52. The Respondent shall make full payment to the bank account provided by the Claimant in the
Bank Account Registration Form, which is attached to the present decision.
53. 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.
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d. Costs
54. 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.
55. 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.
56. 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, Jean Mousté, is partially accepted.
2.
The Respondent, Al-Diwania, has to pay to the Claimant, the following amount(s):
- USD 15,000 as outstanding remuneration plus 5% interest p.a. as from 29 September 2021 until
the date of effective payment;
- USD 2,000 as outstanding remuneration plus 5% interest p.a. as from 2 November 2021 until the
date of effective payment;
- USD 2,000 as outstanding remuneration plus 5% interest p.a. as from 2 December 2021 until the
date of effective payment;
- USD 1,097 as outstanding remuneration plus 5% interest p.a. as from 18 December 2021 until
the date of effective payment;
- USD 69,903 as compensation for breach of contract without just cause plus 5% interest p.a. as
from 18 December 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
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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).
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