Labour Disputes
Texto da decisão
REF FPSD-3245
Decision of the
Dispute Resolution Chamber
passed on 25 November 2021
regarding an employment-related dispute concerning the player Chadrack Muzumgu
BY:
Frans DE WEGER (The Netherlands), Chairperson
Mario FLORES CHEMOR (Mexico), member
Stefano SARTORI (Italy), member
CLAIMANT:
Chadrack Muzumgu, Congo DR
RESPONDENT:
UD Almeria, Spain
REF FPSD-3245
I.
Facts
1. On 15 January 2020, the player Chadrack Muzumgu and UD Almeria concluded an employment contract
valid as from the date of signature until 30 June 2022.
2. According to the contract, the player was entitled to the following:
Season 2019/2020:
EUR 10,000 gross per year, to be paid in 6 instalments of EUR 1,666.66 gross per month, from January
2020 until June 2020
Season 2020/2021:
EUR 36,000 gross per year, to be paid in monthly instalments of EUR 3,000 gross, from July 2020 until
June 2021.
Season 2021/2022
EUR 36,000 gross per year, to be paid in monthly instalments of EUR 3,000, from July 2021 until June
2022.
3. Art. 15 of the contract stipulated the following:
“Las partes se someten de forma expresa para la resolución de cuestiones litigiosas que puedan surgir
de la interpretación y cumplimiento del presente contrato a juzgados de la FIFA y el TAS,y
subsidiariamente si fuera necesario a los tribunales de Almeria”.
Free translation into English:
"The parties expressly submit themselves to the courts of FIFA and CAS for the resolution of any litigious
matters that may arise from the interpretation and fulfilment of this contract, and alternatively, if
necessary, to the courts of Almeria.
4. On 3 August 2020, and within the context of a loan from Almería, the player signed a contract with the
French club, US Boulogne Cote d’Opale, valid as from the date of signature until 30 June 2021, for
monthly salary of “201 points” in accordance with art. 17 of the French Statute for Federal Players.
5. According to the documentation provided by the claimant, the player had a Spanish residence permit
issue on 11 March 2020 and valid until 31 January 2021.
6. In addition, also according to the documentation provided by the claimant, the player had a French
residence permit (titre de séjour) valid until 9 July 2021.
7. On May 2021, the player sent a “Whatsapp Message” to the club, asking for the renewal of his residence
permit.
8. On 24 June 2021, the player sent, via his legal representative, a notice to Almería with the following:
“I am writing to you in my capacity as lawyer for [the player], currently playing for your club under an
employment contract signed for three sports seasons on 15 January 2020.
REF FPSD-3245
He has been loaned to the French club Boulogne-sur-Mer for the 2020/2021 season.
(…) on last 5 February you submitted to him for signature a rider for early termination of his employment
contract, which my client refused.
He also tells me that he has no further news from you about the coming season.
He has no training program and does not know when the season will start again.
He has to pay for his own plane tickets because he is totally abandoned.
Furthermore, it would appear that you have not taken the necessary steps to renew my
client's residence permit, so that he will soon be in an irregular situation on Spanish territory in a few
weeks' time.”
9. On 5 July 2021, the player sent, via his legal representative, a new notice to Almería with the following
contents:
“[the player] is in a critical situation since his return to Almeria on 29 June 2021.
At the end of his loan with the French dub Boulogne-sur-Mer, he had to pay for his plane ticket to return
to train with the Almeria team.
Without any news from you, he had to pay his own accommodation costs. Furthermore, he did not
receive any training programme. He is literally left to his own devices.
In order to make up for your failure, he went twice to the Almeria town hall to try to regularise his
administrative situation, but without your help he can do absolutely nothing.
His visa expires on 9 July, in 4 days.”
10. The legal representative of the player sent a final notice to the Asociación de Futbolistas Españoles (AFE)
on 8 July 2021, noting that his visa was about to expire and thereby requesting the club’s intervention
as a matter of urgency.
11. According to a cancelled subsequent transfer instruction (TMS 410791), Almería sent the following
notification to the player, date 22 July 2021:
“Subject: Cancellation of Employment Contract with Immediate Effect
on 5 February 2021, UD Almeria provided you with a termination of the employment agreement initiated
between you and the Spanish Club in which both Parties agreed to terminate their labour relationship
(…). By agreeing with the content of the aforesaid termination, you were no longer considered as an
employee of UD Almeria. As confirmation of this, your absolute silence since February 2021 served as
an implicit but very obvious validation that you were uninterested in pursuing your professional career
with UD Almeria.
(…)
In addition to the termination of the employment agreement, it is also undisputed that you were absent
from the Spanish territory for more than a year, without providing UD Almeria with any information
regarding your legal situation in Spain (or in France or Morrocco). Considering that you were absent
from the country during that time without a valid contract with a Spanish Club, your residence and work
permit effectively expired
(…)
REF FPSD-3245
UD Almeria cannot be held responsible for resolving your bureaucracy issues with the Spanish authorities
due to your choice of professional career, any previous employment relationship that you maintained in
the past with UD Almeria has become void and impossible to pursue.”
12. On 10 August 2021, the player concluded an employment contract with the Moroccan club, RS
Berkane from the French club US Boulogne (note: the transfer instruction from Almería was cancelled)
13. Accordingly, the player was entitled to a sign-on bonus in the amount of MAD 690,000, as well as to a
monthly salary of MAD 60,000 for the season 2021-2022 (it can be estimated that, during said season,
the player would have earned MAD 1,410,000, equivalent to approx.. EUR 134,000).
14. On 6 August 2021, Chadrack Muzumgu lodged a claim before FIFA for breach of contract without just
cause and requested the payment of the following, plus 5% interest p.a. as from 24 June 2021:
EUR 36,000, corresponding to the residual value of the contract;
EUR 300,000, as moral damages.
According to the player, Almería tried to terminate the contract on 15 January 2020. However, in view
of his refusal, the player argued that the club tried to loan him to the Moroccan club, US Fès.
In regards to said proposal, the player explained that he wished to continue with his career in Europe,
and therefore rejected said offer.
15. The player explained that he made all the necessary steps to have his visa renewed, but stated that
Almería failed to assist him in this regards. He acknowledged that he continued to live in Spain in an
irregular manner.
16. In its reply to the claim, Almería argued that the player “simply did not disclose his complete
unwillingness to maintain his employment relationship with Almeria in the first place.”
17. The club argued that it was only after the end of the loan with U.S Boulogne, on 29 June 2021, that
the Player suddenly returned to Spain but, at that point in time, the employment relationship between
the Parties had already become void and impossible to pursue.
18. In particular, the club argued that the player did not renew his visa due to his own fault.
19. According to the club, the player was well aware that his Employment Agreement with Almeria was
effectively suspended for all purposes during such loan period, and finally that he only sought Almeria
to try to solve his legal status in Spain after his Spanish Residence/Work Permit was already expired,
when the Club could not request a renewal on behalf of the Player,
20. The club explained that only on 11 May 2021, the player contacted in order to extend his visa in Spain.
21. Consequently, the club argued that due to his lack of interest in representing Almeria’s B squad and
pursuing his employment relationship with the Club, intentionally let his Spanish Residence/Work Permit
expire before seeking Almeria to find a feasible solution for his legal status in Spain,
REF FPSD-3245
22. In his replica, the claimant explained that it was the club’s responsibility to undertake all necessary
measures in order to provide the player with a work permit.
23. In fact, according to the Player, "as the Defendant Club itself implies by indicating that the Claimant
would have shown a lack of involvement in his first year of contract, Almeria wished to part with the
Player in his third and final year of contract."
24. The Player has also stated that he has always shown the utmost professionalism even though he was
not playing in the first team.
25. Therefore, the Player has insisted that he is perfectly entitled to claim fair and just compensation for
the damage suffered as a result of this termination.
26. The Player therefore requested the following:
FIND that the Club of Almeria has not complied with its contractual obligations arising from the
signing of the employment contract on 15 January 2020
CONDEMN the Club of Almeria to pay Mr. MUZUNGU the sum of € 2,200 for the unpaid salaries from
1 July 2021 to 22 July 2021
ORDER the Almeria Club to pay Mr MUZUNGU the sum of €18,000 as compensation for the damages
suffered by the Claimant
ORDER the Almeria Club to pay Mr MUZUNGU the sum of €3,000 in reimbursement of the catering,
accommodation and transport costs incurred as a result of the defendant's misconduct
27. As final comments, the Respondent argued that the Claimant has failed to discharge his burden of
proving that the latter has indeed sent to the Respondent the relevant documentation for the renewal
of his Spanish Residence/Work Permit within a feasible timeframe in order for the Respondent to
attempt to renew such documentation with the Spanish authorities before its expiration.
28. According the Respondent, the Claimant was never interested in continuing his employment
relationship within the terms established under the Employment Agreement, and that he intentionally
let his Spanish Residence/Work Permit expire before ever contacting Almeria to try to solve his legal
status in Spain.
29. The Respondent further underlined that it did not terminate the Employment Agreement by means of
the notification sent to the player on 22 July 2021, but only informed him with the reasoning behind
the impossibility of continuation of the employment relationship established between the Parties.
30. In conclusion, the club considered that it shall be established that the Claimant shall not be entitled to
any compensation due to the impossibility of the performance of the Employment Agreement due to
the latter’s own fault.
31. In a subsidiary manner, and considering the player’s amended request, the club rejected the payment
of compensation on the basis of art. 17 par 1 RSTP since the contract was not terminated for overdue
payable.
REF FPSD-3245
32. As to the outstanding remuneration, the club stated that the player duly received his salary for the total
amount of EUR 35,000 during the season 2020/2021.
33. Furthermore, and according to the Respondent, the Claimant has failed to provide any supporting
evidence that could justify a reimbursement in the total amount of €3.000,00
34. Thus, only in the event that FIFA considers that the player is entitled to any compensation, such
compensation shall not exceed, according to the club, and “for the sake of the principle of non ulta
petita” the total amount of €2.388,7, related to part of the salary of July 2021.
REF FPSD-3245
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC)
analysed whether it was competent to deal with the case at hand. 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.
2. Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. b) of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit.
b) of the Regulations on the Status and Transfer of Players (August 2021 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 Congolese player and
a Spanish club.
3. Subsequently, the Chamber 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 (August 2021 edition), and considering that
the date when the present claim was lodged, the August 2021 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
4. In addition, the Chamber referred to art. 14 par. 4 and 5. Of the Procedural Rules, according to
which, respectively, “A chamber may consider and rely on any evidence not presented by the
parties, including without limitation the evidence generated by or within TMS” and “A party
that asserts a fact has the burden of proving it”.
b. Merits of the dispute
5. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary evidence, which it
considered pertinent for the assessment of the matter at hand.
6. The foregoing being established, the Chamber noted that On 15 January 2020, the player
Chadrack Muzumgu and UD Almeria concluded an employment contract valid as from the date
of signature until 30 June 2022.
REF FPSD-3245
7. The Chamber then noted that the player went on loan to the French club, US Boulogne Côte
d’Opale, with a contract valid with said French club as from 3 August 2020 until 30 June 2021.
8. The Chamber then noted that the player lodged a claim for breach of contract without just
cause. In this respect, the Chamber noted that according to a document available in the Transfer
Matching System (TMS), the club sent a letter on 22 July 2021 noting that the contract could
not be performed anymore.
9. Within this context, the Chamber observed the documentation on file, and observed that,
apparently, the player’s Spanish residence permit expired on 31 January 2021, while his French
permit expired on 9 July 2021. The Chamber underlined that the player was on loan in France
until 30 June 2021.
10. Therefore, the Chamber considered that the matter at stake is to determine which party is to
held liable for the non-renewal of the player’s Spanish residence permit.
11. In this respect, the Chamber wished to underline that, it is a basic principle of labour law that
an employer has to provide his employees with a residence permit, if need be. If an employer
does not undertake the necessary to provide his employees with a residence and/or work permit,
and if this compels the player to leave the country where he is employed, and therefore to quit
his work, this is to be considered as an unjustified breach of the employment contract by the
employer. To this end, the Chamber referred also to the contents of art. 18 par. 4 of the
Regulations, which clearly states that the validity of a contract may not be made subject to a
positive medical examination and/or the granting of a work permit.
12. However, in the matter at stake, the Chamber observed that the player’s Spanish residence
permit expired on 31 January 2021. Yet, the player sent several default notices in June and July
2021 to Almeria, noting that his permit would expire on 9 July 2021. The Chamber observed
that said consideration of the player appears to be incorrect, as it referred to his French permit:
his Spanish permit already expired in January 2021. Hence, the Chamber considered that, de
facto, the player confused his Spanish and French permits.
13. Therefore, considering the time elapsed between 31 January 2021 (i.e. when the Spanish permit
expired) and July 2021, the Chamber understood that the player could have been more diligent
in order to prepare his return to Spain, as he had 5 months to request the renewal his permit
before returning to Almería in July 2021.
14. In view of the above-mentioned considered, the Chamber understood that Almería cannot be
held liable for the non-continuation of the contract, which appears to not have been executed
following the end of the loan of the player to Boulogne.
15. In view of the above, the Chamber established that the request for outstanding remuneration
shall also be rejected and the claim of the player is therefore rejected in full.
REF FPSD-3245
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Chadrack Muzumgu, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-3245
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
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