Labour Disputes
Texto da decisão
REF FPSD-3748
Decision of the
Dispute Resolution Chamber
passed on 27 January 2022
regarding an employment-related dispute concerning the player Suzana
Singano Ramadhani Yahaya
BY:
HENDEL Clifford J. (USA/France), Deputy Chairperson
BOEYKENS Stijn (Belgium), member
DOS SANTOS MEGALE Andre (Brazil), member
CLAIMANT:
Suzana Singano Ramadhani Yahaya, Tanzania
Represented by Felix Majani
RESPONDENT:
TP Mazembe, Congo DR
Represented by Gregory Ernes & Gauthier Bouchat
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I.
Facts of the case
1.
On 11 July 2019, the Tanzanian player, Suzana Singano Ramadhani Yahaya (hereinafter: the
player or the Claimant) and the Congolese club, TP Mazembe (hereinafter: the club or the
Respondent) concluded and employment contract valid as from 1 August 2019 to 30 July
2024 (hereinafter: the contract).
2.
According to the contract, the player was entitled to the following:
a.
b.
3.
USD 4,000 as salary;
USD 50,000 as sign-on fee, payable respectively in two instalments of USD 25,000 each
by the signature of the contract and 30 days thereafter.
Clause 10 of the contract reads as follows:
“10. Indemnification
Player agrees to identify and hold the Club harmless for any loss, damage, expense,
prosecution and action directly related to, caused by or arising out of Player’s breach or breach
of the obligations terms and conditions included in this Agreement.
In accordance with the provisions of Article 17 of the FIFA Regulations on the Status and
Transfer of Players, the sum of $2million is due as compensation in the event of a unilateral
breach and/or termination of this contract.”
4.
In September 2020, the player was loaned to the Zambian club, Nkana FC for one season,
i.e. until 30 June 2021(hereinafter: the loan agreement). An employment contract was also
signed by the player and said club for the loan period.
5.
On 11 September 2020, the Claimant and the Respondent signed an addendum, whereby
the contract term was extended to 30 July 2025.
6.
On 11 February 2021, Nkana FC unilaterally terminated the loan agreement.
7.
On 22 August 2021, the player wrote to the Respondent and requested to be reintegrated
to the team, and to travel with his teammates to Morocco for pre-season training.
8.
Having received no response, the player travelled to Congo DR on his own accord to try to
be reintegrated to the team, to no avail. He subsequently returned to Tanzania on 31 August
2021.
9.
On 1 September 2021, the player put the club in default, granting it 15 days to undertake
the following:
a.
Pay his July and August 2021 salaries;
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b.
c.
d.
e.
Pay his outstanding second tranche of the sign-on fees of USD 25,000;
Register him as one of the players eligible to represent Mazembe in the 2020-2021
season;
Refund him the USD 2,000 he incurred to travel to Congo DR for pre-season together
with USD 500 for accommodation; and
Buy him a ticket to return to Congo DR for pre-season training.
10. On 17 September 2021, the player terminated the contract in writing.
11. Following the termination of the contract, the player remained unemployed.
II. Proceedings before FIFA
12. On 21 September 2021, 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
13. According to the Claimant, he had just cause to terminate the contract since the Respondent
had breached the contract by:
a.
b.
c.
Failing to pay him his remuneration on a timely fashion;
Failing to register him;
Not allowing him to train and play with his teammates.
14. Accordingly, the player seeks the following:
a.
USD 37,766 as outstanding remuneration plus 5% interest p.a. as from their due dates,
broken down as follows:
i. July and August 2021 salaries: USD 8,000;
ii. Salary for the period 1 September 2021 to 17 September 2021: USD 2,266;
iii. Outstanding sign-on fees: USD 25,000;
iv. Travel and accommodation expenses regarding his trip to Congo DR: USD 2,500.
b.
USD 2,000,000 as compensation for breach of contract on the basis of clause 10 of the
contract;
c.
alternatively, USD 193,600 as compensation based on the residual value of the contract
(USD 181,600) plus additional compensation of 3 salaries (USD 12,000), both with
interest of 5% p.a. as from 18 September 2021.
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b. Position of the Respondent
15. The Respondent did not reply to the player’s claim in spite of having been invited to do so.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. 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 21 September 2021 and submitted for
decision on . 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.
17. 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 (August 2021 edition), the Dispute
Resolution Chamber is in principle competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
Tanzanian player and a Congolese club.
18. At this point, the Chamber referred to art. 23 par. 3 of the Regulations (edition August 2021),
which stipulates that the decision-making bodies of FIFA shall not hear any dispute if more
than two years have elapsed since the facts leading to the dispute arose. The application of
this time limit shall be examined ex officio in each individual case.
19. In this context, the Chamber recalled that the present claim was lodged in front of FIFA on
21 September 2021. Therefore, in line with art. 23 par. 3of the Regulations, any amounts
fallen due before 21 September 2019 are affected by the statute of limitations.
20. The Chamber noted that, in the present case, the Claimant inter alia requested the payment
of the second instalment of the sign-on fee, which was to be paid within 30 days as from the
execution of the contract, i.e. it fell due on 11 August 2019. Consequently, the specific part
of the Claimant’s claim related to the payment of USD 25,000 as the second instalment of
the sign-on fee under the contract is considered inadmissible.
21. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (August 2021 edition), and
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considering that the present claim was lodged on 21 September 2021, 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
22. 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
23. 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
24. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the Claimant argues he had just cause to terminate the
contract, based inter alia on the alleged non-payment of certain financial obligations by the
Respondent as per the contract, in accordance with art. 14bis of the Regulations.
25. In this context, the DRC observed that the club, for its part, failed to present its response to
the claim of the player, in spite of having been invited to do so. In this way, the DRC
considered that the club renounced its right to defence and thus accepted the allegations of
the player.
26. Furthermore, as a consequence of the aforementioned consideration, the members of the
Chamber concurred that in accordance with art. 21 of the Procedural Rules, they shall take a
decision upon the basis of the documents on file, in other words, upon the statements and
documents presented by the player.
27. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence on file, whether the claimed amounts had in fact remained unpaid by the
Respondent and, if so, whether the formal pre-requisites of art. 14bis of the Regulations had
in fact been fulfilled.
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28. The Chamber then referred to 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).
29. The Chamber noted that the Claimant claims not having received his remuneration
corresponding to the salaries of July and August 2021. Furthermore, the Chamber noted that
the Claimant has provided written evidence of having put the Respondent in default on 1
September 2021, i.e. at least 15 days before unilaterally terminating the contract on 17
September 2021.
30. The Chamber also noted that while in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded between
the parties, it failed to present its position and the Claimant’s claim remained uncontested.
31. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate the
contract, based on art. 14bis of the Regulations. For the sake of completeness, the Chamber
noted this this suffices to establish the player’s just cause and that it did not need to analyse
the issue of the player’s registration and alleged removal form the club’s first team. As such,
it makes no finding on it.
ii. Consequences
32. 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.
33. The Chamber 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 8,000, together with the player’s pro-rata salary of
September 2021, i.e. 17 days, amounting to USD 2,266.
34. 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 10,266.
35. 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 their due dates until the date of effective
payment.
36. 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
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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.
37. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to 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.
38. In this regard, the Chamber took note of the wording of clause 10 of the contract, repeated
herein for ease of reference:
“10. Indemnification
Player agrees to identify and hold the Club harmless for any loss, damage, expense,
prosecution and action directly related to, caused by or arising out of Player’s breach or breach
of the obligations terms and conditions included in this Agreement.
In accordance with the provisions of Article 17 of the FIFA Regulations on the Status and
Transfer of Players, the sum of $2million is due as compensation in the event of a unilateral
breach and/or termination of this contract.”
39. After analysing the content of the aforementioned clause, the Chamber concluded that it
fulfilled the criteria of reciprocity and proportionality, in line with the Chamber’s longstanding
jurisprudence, and therefore was to be applied in the case at hand to determine the amount
of compensation payable by the Respondent to the Claimant.
40. Consequently, the Chamber decided that the amount of USD 2,000,000, as per the
compensation clause agreed between the parties in the contract, is due to the player by the
club.
41. Lastly, 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 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
42. 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.
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43. 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.
44. 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.
45. 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.
46. 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
47. 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.
48. 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.
49. Lastly, the DRC concluded its 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, Suzana Singano Ramadhani Yahaya, is partially accepted insofar
as it is admissible.
2.
The Respondent, TP Mazembe, has to pay to the Claimant the following amount(s):
- USD 4,000 as outstanding remuneration plus 5% interest p.a. as from 1 August 2021 until
the date of effective payment;
- USD 4,000 as outstanding remuneration plus 5% interest p.a. as from 1 September 2021
until the date of effective payment;
- USD 2,266 as outstanding remuneration plus 5% interest p.a. as from 18 September 2021
until the date of effective payment;
- USD 2,000,000 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 21 September 2021 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 (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1.
2.
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.
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 art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
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).
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