Labour Disputes
Texto da decisão
REF FPSD-7048
Decision of the
Dispute Resolution Chamber
passed on 22 November 2022
regarding an employment-related dispute concerning the player
Sodiq Ololade Atanda
BY:
Jon Newman (USA), Single Judge of the Dispute Resolution Chamber
CLAIMANT:
Sodiq Ololade Atanda, Albania
Represented by Mr Lorin Burba
RESPONDENT:
Dhofar Club, Oman
Represented by Mr Nasr Eldin Azzam
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I. Facts of the case
1.
On 29 January 2022, the Albanian player, Sodiq Ololade Atanda (hereinafter: the Claimant),
and the Omani club, Dhofar Club (hereinafter: the Respondent) signed an employment
contract valid as from 1 February 2022 until 31 May 2023 (hereinafter the Contract).
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant a monthly salary of USD 8,000.
3.
On 5 June 2022, the Claimant put the Respondent in default of payment of USD 16,000,
corresponding to the allegedly outstanding monthly salaries of April 2022 and May 2022,
granting a 15-day deadline for the latter to remedy the breach.
4.
On 19 June 2022, the Respondent sent a letter to the Claimant in which it acknowledged
the outstanding amount and undertook to pay the Claimant within 24 hours, and
therefore the deadline which was set in the previous default notice.
5.
On 20 June 2022, the Claimant unilaterally terminated the Contract.
6.
On the same day, the Respondent sent a letter to the Claimant in which it indicated that
it had performed a partial payment through a money exchange company of the
outstanding amounts on 20 June 2022, in total OMR 2,000 (approx. USD 5,200). In this
respect, the Respondent attached to said letter an alleged proof of payment.
7.
Allegedly, on the same day, the Respondent requested its bank to make the transfer of
OMR 2,188.32 (approx. USD 5,640) on account of the fact that the previous payment had
allegedly failed.
8.
On 22 June 2022, the Claimant stated that the proof of payment contained no tracking
number, making the verification of the payment with the former’s bank impossible. The
Claimant, therefore, requested the Respondent to send a valid proof of payment to the
former by the end of the day, in the absence of which, the Contract would remain
terminated. If, however, the Claimant received a valid proof of payment by said deadline,
he promised to withdraw the termination.
9.
On 23 June 2022, the Claimant once again requested a valid proof of payment by COB of
that day, as the funds had not been credited to him until then, despite the payment having
allegedly been made on 20 June 2022.
10. Later that day, the Claimant informed the Respondent that, having not received a valid
proof of payment that could be tracked by his bank, the termination of the Contract would
stand.
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11. On 24 June 2022, the Respondent replied to the Claimant, asserting that the payment had
in fact been made, and threatened the Claimant that there would be “severe
consequences” if he did not withdraw the termination.
12. On 4 August 2022, the Claimant and the Albanian club, KF Egnatia (hereinafter: the New
Club) signed an employment contract valid as from the date of signature until
31 May 2023 (hereinafter the New Contract).
13. In accordance with the New Contract, the Respondent undertook to pay the Claimant a
total remuneration of EUR 700, corresponding to EUR 400 as a salary and EUR 300 as a
housing allowance.
II. Proceedings before FIFA
14. On 12 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
15. The Claimant argued that he terminated the Contract with just cause, as the Respondent
failed to pay two monthly salaries for the months of April 2022 and May 2022, in the
amount of USD 16,000. Furthermore, the Claimant pointed out that it granted the
Respondent a deadline of 15 days to remedy the alleged breach, to no avail.
16. Additionally, the Claimant asserted that he demonstrated effort to keep the contractual
relationship afloat, even granting the Respondent an opportunity to demonstrate that it
had remedied the breach after the expiration of the deadline and termination of the
Contract.
17. The Claimant categorically denied having received any of the amounts the Respondent
alleged to have paid, even at the time the claim was lodged, and that the proof provided
by the latter was not valid as it did not contain a tracking number, thereby making it
allegedly impossible for the Claimant’s bank to verify whether the payment was made.
18. The Claimant requested outstanding remuneration in the amount of USD 21,333.33,
corresponding to the salaries for April 2022 and May 2022, as well as the pro-rata salary
for June 2022, plus interest of 5% p.a. as from the day following the respective due dates
until the date of effective payment.
19. Furthermore, the Claimant requested compensation in the amount of “at least
USD 128,092.78”, corresponding to the alleged residual value of the Contract, with the
application of mitigation and additional compensation of (at least) three months already
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included, as well as interest of 5% p.a. as from 21 June 2022 until the date of effective
payment.
20. Lastly, the Claimant requested the application of sporting sanctions due to the breach of
contract during the protected period.
b. Position of the Respondent
21. In its reply, the Respondent firstly outlined that the alleged payment was made by a
money exchange company, as the relevant representative was not able to “finalise the
matter during working hours”. In this respect, due to an apparent technical issue related
to the exchange company, it was unclear whether the payment reached the Claimant.
22. After finding out that the payment through the exchange company had failed, the
Respondent requested its bank on 21 June 2022 to make a payment of OMR 2,188.32
(approx. USD 5,640) to the Claimant.
23. The Respondent argued that, not only did it provide the Claimant with a proof of payment
dated 23 June 2023, but that said proof of payment contained the same bank account
details as entered by the Claimant on the bank account registration form.
24. The Respondent further argued that it demonstrated good faith by attempting to make
the outstanding payment (though only in part) after hours, using a currency exchange
office, and that this should be taken into consideration when determining whether or not
the Contract was terminated with just cause.
25. Beyond this, the Respondent accused the Claimant of bad faith and attempting to deceive
the Football Tribunal, alleging that it would be “ridiculous” for him to sign a contract (i.e.
the New Contract) with a monthly salary of EUR 400, particularly considering that the
average monthly living costs in Albania exceed said figure.
26. The Respondent, therefore, requested that only outstanding remuneration be paid to the
Claimant, without any compensation, due to the bad faith of the latter in attempting to
“mislead and manipulate” the Football Tribunal.
c. Comments of the Claimant
27. The Claimant was invited to provide short comments as to the alleged payment made by
the Respondent.
28. In this respect, the Claimant confirmed that the alleged payment in the amount of
USD 5,640 was made, however, added the following remarks:
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-
The date the payment was ordered is unclear; both 21 June and 22 June are
stated on the payment confirmation;
-
The bank allegedly only proceeded with the payment on 23 June 2022, and in
any case, the Claimant never received any payment confirmation or SWIFT code
to track the payment;
-
The funds allegedly entered the Claimant’s account in the “first week of July”.
29. As such, according to the Claimant, despite the alleged payment having been made as
claimed by the Respondent, the termination of the Contract was nevertheless with just
cause. The Claimant subsequently amended his request for relief to a total amount of
USD 15,693.33 after acknowledging the partial payment of USD 5,640.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
30. 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, he took note that the present matter was presented to FIFA on
12 August 2022 and submitted for decision on 22 November 2022. 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.
31. 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), he is competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between an Albanian player and an Omani club.
32. 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 (October 2022
edition), and considering that the present claim was lodged on 12 August 2022, the July
2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter
at hand as to the substance.
b. Burden of proof
33. 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
34. 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, he 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
35. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the lawfulness of the
contractual termination by the Claimant.
36. In this context, the Single Judge acknowledged that his task was to determine whether or
not the payments claimed as outstanding had, indeed, remained as such, and
consequently, whether the Claimant had just cause in accordance with art. 14bis of the
Regulations to terminate the Contract on 20 June 2022.
37. Before analysing the argumentation and evidence on file, the Single Judge first reiterated
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).
38. To begin with, the Single Judge recalled that, at the time the Contract was terminated by
the Claimant, the Respondent admitted that it failed to make the payment of two monthly
salaries, corresponding to the months of April 2022 and May 2022. Beyond this, the
Claimant put the Respondent in default of those amounts and granted a deadline of 15
days for the Respondent to remedy the breach, with the Respondent even admitting that,
due to a technical error during the monetary transfer, the payment had not been effected.
39. Furthermore, the Single Judge wished to point out that the Claimant demonstrated that
he acted in good faith in attempting to salvage the contractual relationship, by stating
that he was prepared to withdraw the termination of the Contract if a satisfactory proof
of payment would be sent, to no avail. In this respect, the Claimant had confirmed that
he had not received any proof of payment from the Respondent at the time the Contract
was terminated, and that the following day, the Respondent merely sent a letter without
any supporting evidence that the payment had allegedly been made.
40. The Single Judge also noted that the Claimant confirmed that a payment of USD 5,640 was
made by the Respondent, but that he had not received proof of such transaction until the
present proceedings. It was, therefore deemed that the Claimant complied with the
formal requirements of art. 14bis of the Regulations, and that the Respondent failed to
meet the burden of proving that he remedied the alleged breach satisfactorily.
41. The Single Judge also wanted to point out, for completeness’ sake, that, in accordance
with his own jurisprudence, a contractual termination under art. 14bis of the Regulations
is still considered to be with just cause, despite partial payments having been made within
the period granted in the default notice, based on the rationale that the debt owed by a
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club to a player must be paid in full (cf. Pablo v Poli Timisoara, SJ DRC Decision of
28 February 2020).
42. Based on the above, the Single Judge established that the formal prerequisites of
art. 14bis had been met in the present case.
43. Therefore, the Single Judge concluded that the Contract had been terminated by the
Claimant on 20 June 2022 with just cause.
ii. Consequences
44. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
45. 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 two salaries
under the Contract, amounting to USD 16,000.
46. Furthermore, the Single Judge noted that the Claimant had worked for more than 15 days
during the month of June 2022, on account of which the salary for said month was to be
considered as outstanding at the time the Contract was terminated. Lastly, it was recalled
that the Claimant acknowledged a payment of USD 5,640 which shall be deducted from
the aforementioned figure.
47. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber 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 10,360 (or, USD 2,360 plus USD 8,000 plus USD 8,000).
48. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber 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 following dates:
-
On the amount of USD 2,360, 5% p.a. as from 1 May 2022 until the date of
effective payment;
-
On the amount of USD 8,000, 5% p.a. as from 1 June 2022 until the date of
effective payment;
-
On the amount of USD 8,000, 5% p.a. as from 1 July 2022 until the date of
effective payment.
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49. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent in the case at stake. In doing
so, he 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.
50. In application of the relevant provision, the Single Judge held that he first of all had to
clarify as to whether the pertinent 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 Contract.
51. 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 non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
52. Bearing in mind the foregoing as well as the claim of the Claimant, the Single Judge
proceeded with the calculation of the monies payable to the Claimant under the terms of
the Contract from the date of its unilateral termination until its end date. Consequently,
the Chamber concluded that the amount of USD 88,000 (i.e. the residual value of the
Contract) serves as the basis for the determination of the amount of compensation for
breach of contract.
53. In continuation, the Single Judge verified as to whether the Claimant 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.
54. Indeed, the Claimant found employment with the New Club. In accordance with the New
Contract, the former was entitled to EUR 700 per month. Therefore, the Single Judge
concluded that the player mitigated his damages in the total amount of EUR 7,000 (or,
approx. USD 7,629), that is, 10 times EUR 700.
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55. Subsequently, the Single 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 Single Judge confirmed that the Contract
termination took place due to said reason i.e. overdue payables by the Respondent, and
therefore decided that the Claimant shall receive additional compensation.
56. In this respect, the Single Judge decided to award the amount of additional compensation
of USD 24,000, i.e. three times the monthly remuneration of the Claimant. At the same
time, the Single Judge recalled that the overall amount of compensation awarded may not
exceed the residual value of the Contract, thereby limiting the amount of additional
compensation to the value of the mitigated damages.
57. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the Respondent must pay
the amount of USD 88,000 to the player (i.e. the residual value of the Contract), which was
to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
58. Lastly, 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 player interest on said
compensation at the rate of 5% p.a. as of 12 August 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
59. 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.
60. 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.
61. 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
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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.
62. 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.
63. 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
64. 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.
65. 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.
66. 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, Sodiq Ololade Atanda, is partially accepted.
2.
The Respondent, Dhofar Club, has to pay to the Claimant, the following amount(s):
- USD 2,360 as outstanding remuneration plus 5% interest p.a. as from 1 May 2022 until
the date of effective payment;
- USD 8,000 as outstanding remuneration plus 5% interest p.a. as from 1 June 2022 until
the date of effective payment;
- USD 8,000 as outstanding remuneration plus 5% interest p.a. as from 1 July2022 until
the date of effective payment;
- USD 88,000 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 12 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 article 24 par. 7 and 8 and art. 25 of the Regulations on the Status
and Transfer of Players.
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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).
CONTACT INFORMATION
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