Labour Disputes
Texto da decisão
REF FPSD-5783
Decision of the
Dispute Resolution Chamber
passed on 23 June 2022
regarding an employment-related dispute concerning the player Many Asumani Rachid
BY:
Clifford J. HENDEL (USA & France), Deputy Chairperson
Gonzalo DE MEDINILLA (Spain), member
FLORES CHEMOR Mario (Mexico), member
CLAIMANT:
Many Asumani Rachid, Congo
RESPONDENT:
CD Primeiro de Agosto, Angola
REF FPSD-5783
I Facts
1. The player Many Asumani Rachid and the club CD Primeiro de Agosto concluded an
employment contract valid as from 1 October 2020 until 30 June 2022.
2. According to art. 2 of the contract, the player was entitled to the following:
Season 2020/2021: AOA (Angolan Kwanza) 70,000,000, payable in 10 instalments of AOA
7,000,000.
Season 2021/2022: AOA (Angolan Kwanza) 70,000,000, payable in 10 instalments of AOA
7,000,000.
3. The player was also entitled to a sign-on bonus of USD 50,000, to be paid at the beginning
of the season 2020/2021.
4. The contract stipulated, inter alia, the following:
« ARTICLE 8 : RÉSILIATION DU CONTRAT
Le contrat peut être résilié dans les conditions suivantes :
(…)
2. Il constitue un motif valable de résiliation du Contrat par le Joueur la violation des obligations
contractuelles auxquelles le Club est tenu en vertu de la contrat, à savoir le paiement ponctuel de
la rémunération à laquelle il est obligé.
3 Le Club peut prendre l'initiative de résilier unilatéralement le Contrat moyennant une indemnité
calculée à 40% de la valeur de toute rémunération à laquelle le joueur aurait droit jusqu'à la fin
du Contrat, si les performances du joueur ne correspondent pas aux attentes qui motivé le Club à
votre embauche.
4 La résiliation unilatérale du contrat sans juste motif par le Joueur ou en cas d'accord de transfert
vers un autre club national ou étranger, le Club aura droit à une indemnité d'un montant
correspondant à USD : 1 000 000,00 (Un Million de US dollars). Sans préjudice pour le CLUB
d'exiger du JOUEUR les indemnités prévues en matière de législation du travail.
Free translation into English:
"ARTICLE 8: TERMINATION OF THE CONTRACT
The contract may be terminated under the following conditions:
(...)
2. 2. A valid reason for termination of the Contract by the Player is the breach of the contractual
obligations to which the Club is bound under the Contract, namely the timely payment of the
remuneration to which it is obliged.
3 The Club may unilaterally terminate the Contract with compensation calculated at 40% of the
value of any remuneration to which the player would be entitled until the end of the Contract, if
the player's performance does not correspond to the expectations that motivated the Club at the
time of hiring.
4 Unilateral termination of the Contract without just cause by the Player or in the event of a
transfer agreement to another national or foreign club, the Club shall be entitled to compensation
in the amount of USD: 1,000,000.00 (One Million US dollars). Without prejudice to the CLUB's right
to claim compensation from the PLAYER in accordance with labour legislation.”
REF FPSD-5783
5. The contract included the following jurisdiction clause:
« ARTICLE 12 : RÈGLEMENT DES LITIGES
1.
Les parties rechercheront la voie du dialogue pour résoudre tous les conflits découlant de
l'interprétation et de l'exécution du présent contrat, conformément aux principes de bonne foi. A
défaut d'accord en ce sens, les parties soumettront la solution des litiges à l'arbitrage
conformément à l'article 64 des Statuts de la FIFA (FÉDÉRATION INTERNATIONALE DE FOOTBALL
ASSOCIÉ).
2.
Les procédures établies par la loi 16/03, du 25 juillet - Loi sur l'arbitrage volontaire,
s'appliquent à l'arbitrage, le tribunal arbitral étant composé de trois arbitres, chaque partie
choisissant un arbitre, qui en choisira un troisième qui présidera.
3.
Les arbitres doivent être choisis parmi des personnes ayant au moins cinq ans d'expérience
en gestion sportive, de préférence avec un diplôme en droit.
4.
Le Tribunal Arbitral fonctionnera à Luanda et ses décisions seront définitives et
obligatoires, les parties renonçant à tout recours. “
Free translation into English:
“ARTICLE 12: SETTLEMENT OF DISPUTES
1.
The parties shall seek to resolve all disputes arising from the interpretation and
performance of this contract through dialogue, in accordance with the principles of good faith.
Failing such agreement, the parties shall submit the settlement of disputes to arbitration in
accordance with Article 64 of the FIFA (INTERNATIONAL ASSOCIATION OF FOOTBALL FEDERATION)
Statutes.
2.
The procedures established by Law 16/03, of 25 July - Voluntary Arbitration Act, shall apply
to the arbitration, with the arbitration tribunal being composed of three arbitrators, each party
choosing an arbitrator, who shall choose a third to preside.
3.
The arbitrators must be chosen from among persons with at least five years' experience in
sports management, preferably with a law degree.
4.
The Arbitral Tribunal shall operate in Luanda and its decisions shall be final and binding,
the parties waiving any appeal.”
6. On 26 March 2022, the player, via his legal representative, sent a default notice, requesting
the payment of his salaries from January, February and March 2022 (i.e. AOA 21,000,000 or
USD 45,000), and granted 15 days to remedy the default, while noting that he would be
entitled to terminate his contract in accordance with arts. 14 and 14 bis of the RSTP.
7. On 13 April 2022, the player, via his legal representative (Mr Amir Hizem), sent a
termination notice insofar the club failed to pay the amounts mentioned in his default
notice.
8. The player declared that he remained unemployed.
9. On 15 April 2022, Many Asumani Rachid lodged a claim before FIFA for outstanding
remuneration and breach of contract without just cause and requested the payment of the
follows:
REF FPSD-5783
-
AOA 280,000,000, corresponding to his salaries from January to April 2022 (i.e.
70,000,000*4)
USD 41,000 as the remaining part of the sign-in bonus.
AOA 210,000,000 (“two hundred ten million”, as compensation and corresponding to
the residual value of the contract, or its equivalent in USD, plus 5% interest p.a. as from
28 March 2022.
10. In its reply to the claim, the Respondent argued that FIFA is not competent for this matter
and referred to art. 12 of the contract, as it considered that “it was perfectly defined by the
parties that any dispute between the two emanating from that Employment Contract would be
resolved by um tribunal arbitral” [sic].
11. The Respondent further stated that “the alleged termination of the employment contract
presented by Claimant, as well as this complaint lodged with FIFA was made by the player's agent
(Mr. Ariel Etiamoto, from the agency Baldal26sports), in the most complete default of the player,
without his knowledge and authorization.”
12. The Respondent considered that the contract remains in force.
13. The club further explained it is facing financial problems as it is no longer under the
tutelage of the Angolan Armed Forces.
14. The club acknowledged a debt of USD 27,432.40 in relation to the sign-on bonus.
15. As to the outstanding salaries, the club acknowledged a debt of AOA 21,000,000,
corresponding to the salaries of February, March and April 2022.
16. The club provided a series of documents from “BFA” (Banco de Fomento SARL) to prove the
following payments:
- AOA 7,300,000.01 on 3 November 2021;
- AOA 7,300,000.01 on 14 December 2021;
- AOA 14,600,000.02 on 17 February 2022;
- AOA 7,300,000.01 on 13 April 2022;
- AOA 5,000,000 on 26 November 2021.
17. In his replica, the Claimant insisted in the competence of FIFA.
18. The Claimant further noted that the following salaries remain outstanding:
- October 2020: AOA 7,000,000
- Part of November 2021: AOA 1,200,000;
- February 2022: AOA 7,000,000
- March 2022: AOA 7,000,000
- April 2022: AOA 7,000,000
- May 2022: AOA 7,000,000
Total: AOA 36,200,000
REF FPSD-5783
19. As to the sign-on bonus, the player considered that the club wrongly assigned his housing
costs (estimated amount of AOA per month) to pay this amount. The player therefore
insisted to be paid USD 41,000 as sign-on bonus.
20. In its duplica, the Respondent insisted that FIFA should not be competent.
21. The Respondent stated that “it is Claimant himself who confesses that the notice of
termination of the employment contract was made in his own fault and against his will.”
22. The Respondent complained that, in his replica, the Respondent claimed now the salary of
May, but considered that he was not entitled to amend his claim.
23. The Respondent considered that it is false that the amount of AOA 300,000 paid to
Claimant along with his salary is for payment of the household income, as there was never
an agreement in this regard.
24. The Respondent insisted that it owes the amount of USD 27,423.40 for the sign-on bonus
as well as AOA 21,000,000 as outstanding salaries.
REF FPSD-5783
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 the Chamber)
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 15 April 2022 and submitted for
decision on 23 June 2022. 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 Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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), it is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Congolese player and an
Angolan club.
3.
Subsequently, the Single Judge 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 present claim was lodged on 15 April 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
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.
Admissibility
5.
In this respect, the Chamber referred to clause 12 of the employment contract concluded
between the parties, according to which: ”The parties shall seek to resolve all disputes arising
from the interpretation and performance of this contract through dialogue, in accordance
with the principles of good faith. Failing such agreement, the parties shall submit the
settlement of disputes to arbitration in accordance with Article 64 of the FIFA”.
6.
The Chamber, after analysing the wording of the jurisdiction clause, first wished to clarify
that said clause, although referring to art. 64, in reality likely refers to art. 56 of the FIFA
Statutes, according to which “FIFA recognises the independent Court of Arbitration for Sport
REF FPSD-5783
(CAS) with headquarters in Lausanne (Switzerland) to resolve disputes between FIFA, member
associations, confederations, leagues, clubs, players, officials, football agents and match
agents.”
7.
In any case, and after duly analysing the contents of clause 12 of the contract, the Chamber
noted that it generically refers to arbitration and its location in Luanda, but it does not refer
to one specific arbitral tribunal. In this respect, the Chamber also observed that the
Respondent did not provide any evidence about a specific arbitral tribunal.
8.
As a consequence, the Chamber was of the opinion that the first pre-requisite for
establishing the competence of an NDRC was not met, and therefore, without the need to
enter the analysis of any further requirement, it established that the Respondent’s
objection to the competence of FIFA to deal with the present matter has to be rejected and
that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the
Regulations, to consider the present matter as to the substance.
d.
Merits of the dispute
9.
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.
i.
Main legal discussion and considerations
10. The Chamber first noticed that the parties concluded an employment contract valid as from
1 October 2020 until 30 June.
11. Thereafter, the Chamber observed that the Claimant lodged a claim before FIFA, arguing
that he terminated the contract with just cause on 13 April 2022 after having put the club
in default for outstanding remuneration.
12. On the other hand, the Chamber took note of the position of the Respondent, according to
which it acknowledged the existence of outstanding salaries from February 2022 until April
2022, i.e. 3 Months.
13. In this respect, the Chamber referred to art. 14 bis par. 1 of the Regulations, which stipulate
the following:
“In the case of a club unlawfully failing 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).”
REF FPSD-5783
14. In relation to said article, the Chamber noted that, on 26 March 2022, the player, via his
legal representative, sent a default notice, requesting the payment of his salaries from
January, February and March 2022 (i.e. AOA 21,000,000 or USD 45,000), and granted 15
days to remedy the default, prior to terminating the contract on 13 April 2022.
Consequently, the Chamber understood that, in principle, the requirements outlined by
art. 14 bis par. 1 of the Regulations seem to be met.
15. However, the Chamber also noticed that, according to the Respondent, “the alleged
termination of the employment contract presented by Claimant, as well as this complaint lodged
with FIFA was made by the player's agent (Mr. Ariel Etiamoto, from the agency Baldal26sports),
in the most complete default of the player, without his knowledge and authorization.”
16. Yet, in this regard, the Chamber verified the documentation on file and observed that the
termination of the contract was performed by Mr. Amir Hizem, the same legal
representative of the player within this procedure. The Chamber further verified that a
power of attorney was provided during the proceedings.
17. In view of the above, the Chamber considered that the player, via his duly authorised legal
representative, terminated the contract with just cause in accordance with art. 14 bis par.
1 of the Regulations, and he is therefore entitled to compensation.
ii.
Consequences
18. Having stated the above, the Chamber turned their attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
19. First of all, the Chamber understood that, in addition to compensation, the Claimant is
entitled to his outstanding remuneration due until the date of termination, i.e. until 13 April
2022.
20. In this regard, the Chamber noted that the club acknowledged a debt of AOA 21,000,000,
corresponding to the salaries of February, March and April 2022 while, at the same time,
provided evidence of payment of the following amounts:
AOA 7,300,000.01 on 3 November 2021;
-AOA 7,300,000.01 on 14 December 2021;
-AOA 14,600,000.02 on 17 February 2022;
-AOA 7,300,000.01 on 13 April 2022;
-AOA 5,000,000 on 26 November 2021
21. After analysing the evidence on file, a majority of the Chamber considered that the
Respondent sufficiently proved having paid the player’s salaries, save for the acknowledged
salaries of March, April and May 2022 (i.e. AOA 7,000,000*3).
22. In addition, the Chamber noted that the Claimant requested the payment of USD 41,000
as the remaining part of the sign-in bonus (cf. point 3 above).
REF FPSD-5783
23. On the other hand, the Chamber noted that the Respondent did not prove that said
amount was paid.
24. Consequently, in application of the principle of pacta sunt servanda, the Chamber
established that the Respondent shall pay to the Claimant the amounts of AOA 21,000,000
(outstanding salaries from March, April and May 2022), as well as USD 41,000, as the
remaining part of the sign-in bonus.
25. Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the Chamber decided to award 5% interest p.a. over said
amount as from the due dates.
26. Having stated the above, the Chamber 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
Chamber 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.
27. In application of the relevant provision, the Chamber held that it first of all had to clarify
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.
28. In this regard, the Chamber established that no compensation clause included in the
employment contract is applicable to the matter at stake. The Chamber did not that the
contract did include a clause (art. 8 par. 4 of the contract, cf. point I. 4 above) if the player
terminated the contract without just cause, but noted that it is not applicable to this case,
insofar the player did terminate the contract with just cause.
29. As a consequence, the Chamber determined that the amount of compensation payable by
the Claimant to the Respondent had to be assessed in application of the other parameters
set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision
provides for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
30. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
until its term, i.e. from April 2022 until 30 June 2022. Consequently, the Chamber concluded
that the amount of AOA 21,000,0000 (i.e. 3*7,000,000) serves as the basis for the
determination of the amount of compensation for breach of contract.
REF FPSD-5783
31. In continuation, the Chamber verified whether the player 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
Chamber 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.
32. In this respect, the Chamber noted that the player remained unemployed since the
unilateral termination of the contract.
33. The Chamber 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.
34. In this respect, the Chamber decided to award the player compensation for breach of
contract in the amount of AOA 21,000,0000, corresponding to as the residual value of the
contract.
35. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of the date of claim until the date of effective
payment.
iii. Compliance with monetary decisions
36. 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.
37. In this regard, the Chamber 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.
38. Therefore, bearing in mind the above, the Chamber decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification of
the decision, failing which, at the request of the creditor, 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 club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
REF FPSD-5783
39. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form.
40. The Chamber 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.
e.
Costs
41. 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.
42. Furthermore, 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.
43. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
REF FPSD-5783
III Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Many Asumani Rachid, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, CD Primeiro de Agosto, has to pay to the Claimant, the following amounts:
- AOA 21,000,000 plus interest as follows:
- 5% interest p.a. over the amount of AOA 7,000,000 as from 1 March 2022 until the date of effective payment;
- 5% interest p.a. over the amount of AOA 7,000,000 as from 1 April 2022 until the date of effective payment;
- 5% interest p.a. over the amount of AOA 7,000,000 as from 1 June 2022 until the date of effective payment.
- USD 27,423.40 as outstanding sign-on bonus plus 5% interest p.a. as from 2 October
2020 until the date of effective payment;
- AOA 21,000,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 15 April 2022 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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.
7.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-5783
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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