Labour Disputes
Texto da decisão
REF. FPSD-8381
Decision of the
Dispute Resolution Chamber
passed on 20 April 2023
regarding an employment-related dispute concerning
the player Boah Precious
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Angela Collins (Australia), member
Mario Flores Chemor (Mexico), member
CLAIMANT:
Boah Precious, Ghana
Represented by PFA Ghana
RESPONDENT:
Esperance Sportive de Tunis, Tunisia
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REF. FPSD-8381
I. Facts of the case
1. On 11 August 2021, the Ghanaian player Boah Precious (hereinafter the Claimant or player)
and the Tunisian club Esperance Sportive de Tunis (hereinafter the Respondent or club)
concluded an employment contract (hereinafter the Contract) valid as from the date of
signature until the end of the sporting season 2024/2025 (cf. TMS: 30 June 2025)
2. In accordance with the Contract, the Respondent undertook to pay the Claimant to be paid
as follows:
-
From 11 August 2021 to 30 June 2022: annual salary of USD 150,000, with USD 30,000
payable at the beginning of the season and a monthly remuneration of USD 10,000;
-
From 1 July 2022 until 30 June 2023; annual salary of USD 170,000, with USD 30,000
payable at the beginning of the season and a monthly remuneration of USD 11,666;
-
From 1 July 2023 until 30 June 2024; annual salary of USD 200,000, with USD 30,000
payable at the beginning of the season and a monthly remuneration of USD 14,166;
-
From 1 July 2022 until 30 June 2023; annual salary of USD 220,000, with USD 30,000
payable at the beginning of the season and a monthly remuneration of USD 15,833.
3. On 28 July 2022, the Respondent and the Claimant signed a mutual termination agreement
(hereinafter the Termination Agreement) by way of which the Contract was mutually
terminated. The Agreement read as follows:
“The parties agree to cancel definitely the Contract between them about appointment of Mr Boah
Precious as a professional with EST.
(…)
The Player gives Esperance Sportive de Tunis discharge for the balance of any overall and final
account, irrevocable lump sum and without reservations for all salaries, bonuses, benefits, etc. in
respect of the execution of his contract and its termination.
(…)
The Player declares that he gives up claiming any amount about his previous salaries.”
4. On 29 July 2022, the Respondent made a payment of TND 82,290 to the Claimant.
5. On 26 September 2022, the Claimant put the Respondent in default of payment of
USD 23,332, corresponding to the monthly remuneration for July 2022 and August 2022,
granting a deadline of 10 days to remedy the alleged payment. Moreover, the Claimant
requested the Respondent to arrange a flight ticket for him to return to Tunisia.
6.
On 12 October 2022, the Claimant once again put the Respondent in default of payment, for
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REF. FPSD-8381
the amount of USD 34,998, corresponding to the months of July – September 2022, as well
as requesting a flight ticket to be sent for him to return to Tunisia.
7. On 18 October 2022, the Respondent replied to the Claimant and indicated that it had
already concluded a termination agreement with the latter.
8. On 24 October 2022, the Claimant sent a letter to the Respondent, informing the latter that
he had never signed a termination agreement and was not aware of the existence of such
document, requesting a copy thereof. The Claimant also, once again, requested for the
payment of the three unpaid salaries and a flight ticket to Tunisia.
9. On 2 November 2022, the Claimant sent a termination letter to the Respondent.
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REF. FPSD-8381
II. Proceedings before FIFA
1. On 28 November 2022, the Claimant lodged a claim before FIFA for outstanding
remuneration and compensation due to the termination of the Contract with alleged just
cause.
a. Position of the Claimant
2. The Claimant outlined that he had not been paid four monthly salaries (July 2022 –
October 2022) at the time the Contract was terminated, and never was invited to return to
the Respondent during the new season, despite repeated requests for a flight ticket.
3. The Claimant alleged that the Respondent had blocked him on WhatsApp and fabricated a
termination agreement (i.e. the Termination Agreement) which, even upon request, had not
been communicated to him, demonstrating the Respondent’s manifest bad faith.
4. The Claimant, therefore, argued that he had just cause to terminate the Contract.
5. The Claimant requested outstanding remuneration of USD 46,664, corresponding to four
monthly salaries, as well as USD 513,328, corresponding to the residual value of the Contract.
6. The Claimant requested interest of 5% p.a. as from the respective due dates for the
outstanding remuneration, and from the date of termination for the compensation.
b. Position of the Respondent
7. In its reply, the Respondent asserted that the Claimant received all sums due under the
Contract, up to its mutual termination.
8. The Respondent specified that the Claimant and itself signed a valid Termination Agreement,
in accordance with which the Claimant stated that there were no outstanding amounts left
to pay at the time of the termination itself. The Respondent stated that said document was
also sent to the Tunisian Federation (FTF) on 9 August 2022.
9. Furthermore, the Respondent stated that it made a final compensatory payment of
TND 82,290 to the Claimant (approx. USD 26,000), for the premature termination of the
Contract, which the Claimant acknowledged by signing a payment receipt slip.
10. The Respondent, therefore, requested the dismissal of the claim.
c. Replica of the Claimant
11. The Claimant was invited to comment on the Respondent’s submission.
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REF. FPSD-8381
12. In this respect, the Claimant, after alleging in his original submission that the Termination
Agreement was fabricated, stated that he acknowledged that his signature was on the
document, but that he had no recollection of signing it. He also claimed that he never
received a copy and was never told that the Contract was terminated.
13. The Claimant further alleged that the Respondent “used his inexperience” to sign the
Termination Agreement, whilst being told “it was for a different concept”, and that he was
convinced that the Contract would continue under its initial term.
14. Lastly, the Claimant acknowledged the payment of TND 82,290, but stated that the payment
slip contained a clerical error and that, as opposed to being for the months of June 2022,
July 2022 and August 2022, the payment in reality only concerned amounts due for the
month of July 2022.
d. Duplica of the Respondent
15. The Respondent was invited to provide its answer to the Claimant’s previous submission, as
well as the original proof(s) of payment of all payments made throughout the course of the
Contract.
16. The Respondent provided proof of payment of 11 transactions over the course of the
Contract, amounting to a total amount paid of TND 527,000, or approximately USD 188,890.
The Respondent also emphasised that the Claimant acknowledged having received all
salaries until the date of termination in the Termination Agreement.
17. As to the Termination Agreement, the Respondent alleged that the Claimant insisted on
leaving the former, and that at his request, the Termination Agreement was drawn up. The
Respondent outlined that a draft of the Termination Agreement, signed by the Respondent,
was prepared on 26 July 2022 (in French and English, so as to be in a language intelligible by
both parties), and that both the Respondent and the Claimant signed it on 28 July 2022 “in
front of a public official at the municipality, who verified the Claimant’s identity and
authenticated him by taking his signature and fingerprint. The following day, the Claimant
visited the premises of the Respondent and collected his final check for TND 82,290, signing
a payment slip which acknowledged that all outstanding amounts were paid (“solde du tout
compte”).
18. The Respondent emphasised that no evidence whatsoever was provided of the allegations
of undue influence, that the Claimant was taken advantage of, or that the Termination
Agreement was falsified.
19. The Respondent also argued that the Claimant could have renewed his passport in the
Ghanaian General Consulate in Tunis, as opposed to travelling home, further demonstrating
that the Contract was terminated and the Claimant simply returned home.
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REF. FPSD-8381
III. 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. In this respect, it
took note that the present matter was presented to FIFA on 28 November 2022 and
submitted for decision on 20 April 2023. Taking into account the wording of art. 34 of the
March 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 members of the Chamber 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 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 player from
Ghana and a club from Tunisia.
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 (March 2023 edition), and
considering that the present claim was lodged on 28 November 2022, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
4.
The Chamber 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 Chamber 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 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
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REF. FPSD-8381
considerations it will refer only to the facts, 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 Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the validity of the
Termination Agreement, and by way of consequence the entitlement of the Claimant to
receive compensation for a potentially unlawful breach of contract.
7.
In this context, the Chamber acknowledged that its task was to determine whether, based
on the argumentation and the evidence on file, the Termination Agreement signed by the
parties can be held as valid and binding, and consequently whether or not the Claimant is
due any amounts as compensation.
8.
To begin with, the Chamber noted that the Claimant had initially claimed that the
Termination Agreement submitted by the Respondent was forged, denying that he had
ever signed such document. Subsequently, however, the Chamber observed that the
Claimant withdrew such allegation of forgery, and rather asserted that the Agreement was
signed with undue influence – i.e. with the Respondent misleading the Claimant into signing
it for a different purpose. In any event, the Chamber observed that the Claimant insisted,
the Termination Agreement should be held invalid, and that he is due compensation for
the unlawful termination of the Contract.
9.
On the other hand, the Chamber took note of the Respondent’s submission that the
Claimant had validly signed the Termination Agreement, a copy of which was sent to FTF
on 9 August 2022, and that the Claimant equally signed a “solde du tout compte”,
acknowledging that all due amounts up to that point had been remitted and no further
amounts due, with one “final” payment of TDN 82,290 being made following the signature
of the alleged Termination Agreement. The Chamber equally took note that the
Respondent had emphasised the lack of evidence of forgery and undue influence by the
Claimant.
10. Before entering the substance of the claim, the Chamber referred to art. 13 par. 5 of the
Procedural Rules, in accordance with which parties attempting to rely on certain facts bear
the burden of proving their veracity.
11. Having outlined the above, the Chamber remarked that the Claimant bore the burden of
proving that the Termination Agreement should be considered invalid, be it on the basis of
forgery or undue influence. Notwithstanding, the Chamber noted that the Claimant failed
to provide any evidence as to the respective allegations, and had subsequently
acknowledged that the Termination Agreement contained his own signature.
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REF. FPSD-8381
12. Therefore, the Chamber deemed that the Claimant failed to meet his burden of proving
that the Termination Agreement should be held as invalid, and consequently established
that it should be taken into consideration for the purposes of determining any outstanding
remuneration and / or compensation payable by the Respondent.
13. In light of the above, the Chamber went on to consider whether the Claimant could be held
to be entitled to claim any amounts based on the Contract. In this respect, in application of
the Termination Agreement, no further amounts under the Contract could be claimed, as
the Claimant declared having received all salaries which had contractually fallen due.
Moreover, the Respondent provided satisfactory evidence – i.e. bank payment slips – to
corroborate that all amounts due since the beginning of the Contract, until the Termination
Agreement, had been paid. Lastly, the Claimant acknowledged during the present
proceedings, that he received the final payment of TND 82,290, corresponding to the salary
of July 2022, which was the only salary claimed as outstanding before the date of the
Termination Agreement.
14. Therefore, in conclusion, the Chamber decided to reject the Claimant’s request in full.
ii. Compliance with monetary decisions
15. Finally, taking into account the applicable Regulations, the Chamber 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.
16. In this regard, the DRC 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.
17. Therefore, bearing in mind the above, the DRC 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.
18. 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.
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REF. FPSD-8381
19. The DRC 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
20. The Chamber 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 Chamber decided that no procedural costs were to be
imposed on the parties.
21. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
22. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-8381
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Boah Precious, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-8381
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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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