Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 2 October 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Alex andra Góm ez Bruinew oud (Uruguay ), member
S tefano La Porta (Italy ), member
on the claim presented by the player,
Aloy s Bertrand Nong, Cameroon
represented by Mr Alberto Ruiz de Aguiar Díaz Obregón
as Claimant
against the club,
FC Pars Jonoubi Jam , IR Iran
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 12 July 2017, the Cameroonian player, Aloys Bertrand Nong (hereinafter: Claimant),
and the Iranian club, FC Pars Jonoubi Jam (hereinafter: Respondent), signed an
employment contract (hereinafter: contract) valid “for one football seasons from 12 July
2017 and will be terminated after the end of football season matches in 2017-2018”.
2.
Art 4.7 of the contract read as follows: “The [Claimant] is obliged to grant his passport
to the [Respondent] and if it is necessary take it by cooperation with the [Respondent’s]
manager”.
3.
In accordance with art. 7 of the contract, the Claimant’s remuneration, inter alia, was
established as follows:
-
“amount of contract for football season 2017-2018 will be [Iranian Rials IRR]
5,600,000,000 net;
30% of the amount of contract after signing the contract and registering at
league organization will be paid to him.”
4.
On 8 December 2017, the Claimant put the Respondent in default requesting the
payment of the total amount of IRR 1,708,639,183, providing the Respondent a deadline
of 10 days. According to the default notice, this amount corresponded to the
outstanding balance of IRR 140,639,183 out of the 30% of the contract that had to be
paid after the signature of the contract and IRR 1,568,000,000 as salaries from August
2017 to November 2017.
5.
On 20 December 2017, the Claimant put the Respondent in default requesting the
payment of same amount as in his default notice of 8 December 2017, providing the
Respondent a deadline until 24 December 2017. In said default letter, the Claimant
highlighted that if the amount was not paid within the granted deadline, he would
terminate the contract.
6.
On 27 December 2017, the Claimant unilaterally terminated the contract with
Respondent in writing with immediate effect due to the alleged “repeated breach of
contract committed by [the Respondent]”.
7.
On 12 February 2018, the Claimant lodged a claim against the Respondent, requesting
outstanding remuneration and compensation for breach in the total amount of IRR
4,060,639,183, plus 5% interest p.a. calculated as from the due dates. The Claimant broke
down the requested amount as follows:
a) IRR 140,639,183 as outstanding remuneration;
Player Aloys Bertrand Nong, Cameroon / FC Pars Jonoubi Jam, IR Iran
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b) IRR 3,920,000,000 as compensation for breach of contract, corresponding according
to the player to “the residual value of the contract, i.e. the 70% of the contract”.
8.
Moreover, the Claimant requested sporting sanctions to be imposed on the Respondent.
9.
Regarding the request for outstanding remuneration, the Claimant maintained that the
Respondent only paid him IRR 1,539,360 817 instead of IRR 1,680,000,000 corresponding
to the totality of the 30% of the contract, due on the date of signature. As a
consequence, the Claimant sustained that IRR 140,639,183 remained outstanding.
10.
Concerning the alleged compensation for breach of contract, the Claimant held that in
the absence of a contractual provision regarding the due dates for payment for the
residual 70% of the contract, this amount should have been paid in 10 monthly
instalments of IRR 392,000,000 each, namely as from August 2017 to May 2018.
11.
The Claimant maintained that, after the partial payment made following the signing of
the contract, he had not receive any amounts from the Respondent during the months
of August 2017 until December 2017. The Claimant underlined that, although he put the
Respondent in default twice, the Respondent had not reacted to said default notices and
therefore, he proceeded to terminate the contract with just cause.
12.
The Claimant further declared that after the termination of the contract, the Respondent
retained his passport and obligated him to sign a mutual termination agreement in order
to allow him to sign for another club.
13.
Along those lines, the Claimant held that due to the difficulties he was having in order
to sign with another Iranian club, his legal representative sent a correspondence to the
Iranian FA explaining that the Claimant had terminated the contract and requested the
return of his passport.
14.
In its reply to the claim, the Respondent stated that after terminating contract, the
Claimant stayed in Iran and joined the Iranian club, FC Saipa, with the work permit issued
by the Respondent, which allegedly caused several problems for the Respondent.
15.
Moreover, the Respondent explained that “on 27 may 2018, we as club and the player
have reach to enclosed mutual agreement to solve our problems specifically, help player
to leave Iran ASAP”.
16.
In this context, the Respondent enclosed an undated document titled “agreement”
(hereinafter: the first agreement) allegedly signed by the Claimant, which inter alia read
as follows:
Player Aloys Bertrand Nong, Cameroon / FC Pars Jonoubi Jam, IR Iran
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“Mentioned contract terminated on 27 Dec 2017 during half session by a letter behalf
of player's lawyer despite Club's opposition […]
1. By signing this document, the player or his legal introduced agent or Lawyer
certify that the contract terminated legally on 27 Dec 2017 and there is no any
claims or responsibilities on any matters against Club after half session.
2. The club should pay just 50 percent of amount of contract {5,600,000,000 IRR)
totally which 30 percent paid by club previously according to attached receipts…
3. After signing this agreement, Club guarantee the payment of the remaining 20%
of the contract also the responsibility of getting required permission related visa
and permission work to depart player from Iran until 4 June 2018.
4. After the date of this agreement, all previous claims against Pars Jonoubi &
Cultural Club, behalf of player or his legal lawyer, including attached letters
specifically, which dated 11 Feb 2018 from lawyer to FIFA will be cancelled and
void.
The player before departing from Iran and getting the rest of salary must contact with
FIFA as regardless of the complaint against Club and a transcript to Club and Football
Federation of Islamic Republic of Iran.”.
17.
The Respondent further maintained that “in accordance with lack of any settlement with
current club (Saipa), 5 days holidays in Iran and as well as for preventing problems
regarding Visa exit process that may arise at the airport, we need more times to solve
the player’s problems and help him to exit.” Furthermore, as per the Respondent,
“during 2-3 years ago, the player has played for some Iranian Club with difference type
of Visas or permission works which must settle in many difference cities. Absolutely it
take time to issue final settlement that unfortunately coincided with the holidays.”
18.
In his replica, the Claimant referred to the first agreement and held that he “does not
recognize the validity of said document, and does not recognize the signature inserted
therein”.
19.
The Claimant explained that after lodging the claim, the Respondent and his new club
Saipa, had “blocked his exit from Iran by all means available”. Moreover, the Claimant
held that only after he complained several times, was he able to exit Iran on 27 June
2018.
20.
In conclusion, the Claimant insisted on his claim and request for relief.
21.
In its duplica, the Respondent provided an original version of the first agreement.
22.
Furthermore, the Respondent explained that, “after many difficult process to solve the
player’s passport matters, Club and Mr Nong reached to second and final agreement
during the last payment on 25 June 2018.”
Player Aloys Bertrand Nong, Cameroon / FC Pars Jonoubi Jam, IR Iran
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23.
In addition, the Respondent enclosed another document titled “agreement” dated 25
June 2018 (hereinafter: the second agreement) signed by the Claimant and which
includes his fingerprint. The second agreement inter alia included the following:
“With signing this agreement, both parties have agreed on below matters.
1. The player or his legal agent or lawyer certify that mutual contract terminated
legally on 27 Dec 2017 and there is no any claims or responsibilities on any matters
against Club after half session.
2. The club should pay just 50 percent of amount of contract {5,600,000,000 IRR)
totally which 30 percent paid by club previously according to attached receipts…
By signing this agreement, player or his legal lawyer confirms that they have no
any demands to Club. The Club guarantee the payment of the remaining 20% of
contract also the responsibility of providing required documents related visa and
permission work to depart player from Iran.
3. After the date of this agreement, all previous and current complaints in all legal
or Sport organization such as FIFA, CAS or IRIFF against Pars Jonoubi Jam Sport &
Cultural Club, behalf of player or his legal lawyer, are canceled and will be void.
Including attached letters specifically, which dated 11 Feb 2018 from lawyer to
FIFA.
4. The player or his legal lawyer has no any complaints against the club since today.
They must contact with FIFA to announce his regardless of the current complaint
against Club before departing from Iran and getting the rest of salary. Sending a
transcript of mentioned letter to Club and Football Federation of Islamic Republic
of Iran is necessary.”
24.
Furthermore, the Respondent enclosed a document titled “Payment Receipt” dated 25
June 2018 (hereinafter: the payment receipt / waiver) allegedly signed by the Claimant
and which included his fingerprint.
25.
The payment receipt / waiver inter alia read as follows: “This document has issued to
confirm the payment of 1/150/000/000 Rials as remaining amount of the contract
between Mr. Aloys Bertrand Nong Passport Number 0698345 as player with Pars Jonoubi
Sports & Cultural club for IRI Football Premier league 2017-2018. By signing this
document, Mr. Nong confirms the receipt of all amount of contract and fully settled; also
certify that, the player has no any claims against Pars Jonoubi Sport & Cultural club on
payment, Salary, Bonuses matters.”
26.
Finally the Respondent referred to both agreements, and stated that “it means that
there is two agreements between player and us, which the first one signed on 27 May
2018 and before finding obstacles on the Tax and Visa matters of player. The second and
last one, which you can find the original version, enclosed, officially signed on 25 Jun
2018 with testifier behalf of player and club. You can also recognize the player's
fingerprint below the agreement.”
Player Aloys Bertrand Nong, Cameroon / FC Pars Jonoubi Jam, IR Iran
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27.
With regard to the new documentation provided by the Respondent in its duplica, the
Claimant held that he:
a) “Maintains his initial claim against the Club, consisting of a claim for the
remaining part to be paid of 30 per cent of the value of the contract, which the
Club should have paid with the signing of the contract and which never paid in
full, amount corresponding to 140,639,183 Rials.”
b) “Maintains his initial claim of the payment of 70% of the value of the contract,
i.e. the amount of 3.920.000.000 deducting only the payment of the amount
received on 25 June 2018 and amounting to the amount of 1.150.000.000, so that
the Club continues to owe the Player for this concept the amount of
2.770.000.000.”
28.
In this regard, the Claimant argued that the second agreement does not represent a
waiver of his entitlements and that the amounts claimed by him are consistent, given
that, by means of the second agreement, the Respondent committed itself to pay 50%
of the contract, as well as 20% of the contract i.e. 70% of the contract (minus the
amount received on 25 June 2018 of 1,150,000,000).
29.
In its final comments, the Respondent held that the second agreement was valid and
binding, and was signed with the satisfaction and consent of the parties. Moreover, the
Respondent referred to art. 3. and 4 of the second agreement.
30.
On 15 January 2018, the Claimant concluded an employment contract with the Iranian
club, Saipa CSC, valid until 23 June 2019, by means of which the Claimant was entitled
to the following remuneration:
- USD 50,000, payable as follows:
USD 25,000 “at the time of conclusion of the contract”
USD 25,000, on 21 May 2019;
“Article 1: for satisfaction letter the amount USD 100.000 that the amount
USD 50.000 on 06 March 2018 and the amount USD 50.000 at the end of
half season 2018-2020 after legal deductions will be paid to the player”.
- USD 90,000, payable as follows:
“30%” or USD 27,000 “at the time of conclusion of the contract”
“20%” or USD 18,000 “at the end of the 15th week in season 2018-2020”
“20%” or USD 18,000 “at the end of 22nd week in season 2018-2020”
“30%” or USD 27,000 on 22 May 2020.
Player Aloys Bertrand Nong, Cameroon / FC Pars Jonoubi Jam, IR Iran
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II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or
Chamber) analysed whether it was competent to deal with the case at hand. In this
respect, the Chamber took note that the present matter was submitted to FIFA on 12
February 2018. Consequently, the DRC concluded that the 2018 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art.
21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (edition 2019), 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 Cameroonian
player and an Iranian club.
3.
Furthermore, 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 Player (edition
January 2018), and considering that the present claim was lodged on 12 February
2018, the January 2018 edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect, the
Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. 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. In this respect, the Chamber recalled that in accordance with art. 6 par.
3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence
generated or contained in the TMS.
5.
Having said this, the Chamber proceeded with an analysis of the circumstances
surrounding the present matter, the parties’ arguments as well as the documentation
on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which
any party claiming a right on the basis of an alleged fact shall carry the burden of proof.
6.
First of all, the DRC acknowledged that, on 12 July 2017, the player and the club signed
an employment contract, valid as from the date of signature until “the end of football
season matches in 2017-2018”.
Player Aloys Bertrand Nong, Cameroon / FC Pars Jonoubi Jam, IR Iran
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7.
Moreover, the DRC noted that the Claimant unilaterally terminated his contract on 27
December 2017, invoking just cause due to alleged outstanding remuneration.
Furthermore, the members of the DRC noted that on 12 February 2018, the Claimant
lodged a claim against the Respondent claiming compensation for breach of contract in
addition to outstanding remuneration.
8.
In addition, the Chamber noted that according to the Respondent, the parties had
reached a “mutual agreement to solve our problems specifically”. In this context the
DRC took into consideration the two agreements provided by the Respondent: one
allegedly signed by the parties on 27 May 2018 and the one signed on 25 June 2018, as
well as the payment receipt / waiver dated 25 June 2018 and allegedly signed by the
Claimant.
9.
First of all, the DRC elucidated that the Claimant confirmed signing the second
agreement in which the parties inter alia declared that “the contract terminated legally
on 27 Dec 2017; [that] the club should pay just 50 percent of amount of contract
(5,600,000,000 IRR) totally which 30 percent paid by club previously according to
attached receipts; [and that] the club guarantee the payment of the remaining 20% of
contract”.
10.
Secondly, the Chamber referred to the payment receipt / waiver dated 25 June 2018 and
recalled that, according to said document, the Claimant allegedly confirmed “the
payment of 1/150/000/000 Rials as remaining amount of the contract […] By signing this
document, [the Claimant] confirms the receipt of all amount of contract and fully
settled; also certify that, the [Claimant] has no any claims against [the Respondent] on
payment, Salary, Bonuses matters”.
11.
Given the above, the Chamber established that the primary issue at stake is to determine
as to whether the matter was indeed amicably settled between the parties by means of
the agreement of 25 June 2018 and the payment receipt / waiver and thus, whether the
Claimant had consequently waived his right to claim outstanding remuneration and
compensation vis-à-vis the Respondent.
12.
In this light, the DRC placed particular emphasis on the fact that, by means of his final
comments, the Claimant did not deny having signed the second agreement dated 25
June 2018, nor the payment receipt / waiver also dated 25 June 2018 (cf. I.27 and I.28).
In fact, the Chamber underlined that according to his statements, the Claimant
confirmed having received the amounts stipulated in both the second agreement and
the payment receipt / waiver.
13.
Consequently, DRC wished to establish that, by means of the second agreement dated
25 June 2018, it remained undisputed that the parties had terminated the employment
contract on 27 December 2017 by mutual agreement. As a result, the Chamber
Player Aloys Bertrand Nong, Cameroon / FC Pars Jonoubi Jam, IR Iran
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emphasized that any request for compensation by the Claimant for breach of contract
is rejected.
14.
In continuation, and referring once again to the second agreement, the Chamber
further established that the following three issues remained undisputed:
a) The Claimant would receive 50% of the total contract, i.e. IRR 2,800,000,000;
b) The Claimant has received 30% of the total contract, i.e. IRR 1,680,000,000;
c) The remaining 20% of the total contract, i.e. IRR 1,120,000,000 will be paid by
the Respondent.
15.
Finally, the DRC referred to the payment receipt / waiver and concluded that the
Claimant received IRR 1,150,000,000, an amount which covers the entire amount
outstanding to the Claimant in accordance with the second agreement.
16.
Notwithstanding the above, the Chamber took into consideration the Claimant’s
comments regarding the second agreement and the payment receipt / waiver, who
insisted on his original claim, arguing that he was still entitled to “30% of the value of
the contract […] corresponding to 140,639,183 Rials”. Moreover, the DRC noted that as
per the Claimant, he was still entitled to “70% of the value of the contract, i.e. the
amount of 3.920.000.000 deducting only the payment of the amount received on 25 June
2018 and amounting to the amount of 1.150.000.000, so that the Club continues to owe
the Player for this concept the amount of 2.770.000.000.”
17.
The DRC could not follow the Claimant’s argumentation. As per the Chamber, the second
agreement should be interpreted as meaning that the Respondent had already paid to
the Claimant 30% of the total contract. As such, the DRC understood that the Claimant’s
claim for IRR 140,639,183 is groundless.
18.
Furthermore, the DRC was of the firm opinion that the Claimant was not in a position to
request 70% of the value of the contract, since it had already established that the
contract had been terminated by mutual agreement on 27 December 2017 and that, as
a consequence, the Claimant could not request compensation for breach of contract.
19.
In light of all of the above, and in particular bearing in mind the fact that the validity of
the second agreement as well as of the payment receipt / waiver remained uncontested,
the Dispute Resolution Chamber decided that the Claimant had already obtained all the
amounts he had requested. As a result, the DRC decided that it must reject the claim put
forward by the Claimant in its entirety.
Player Aloys Bertrand Nong, Cameroon / FC Pars Jonoubi Jam, IR Iran
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III.
Decision of the Dis pute Res olution Cham ber
The claim of the Claimant, Aloys Bertrand Nong, is rejected.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or the
DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber).
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). The statement of appeal must be sent to the
CAS directly within 21 days of receipt of notification of this decision and shall contain all the
elements in accordance with point 2 of the directives issued by the CAS. Within another 10
days following the expiry of the time limit for filing the statement of appeal, the appellant
shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS
(cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Aloys Bertrand Nong, Cameroon / FC Pars Jonoubi Jam, IR Iran
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