Labour Disputes
Texto da decisão
REF FPSD-5626
Decision of the
Dispute Resolution Chamber
passed on 7 July 2022
regarding an employment-related dispute concerning the player N’tji Amadou Samake
BY:
Frans DE WEGER (The Netherlands), Chairperson
José Luis ANDRADE (Portugal), member
Peter LUKASEK (Slovakia), member
CLAIMANT:
AlQasim Sport Club, Iraq
RESPONDENT 1:
N’tji Amadou Samake, Mali
RESPONDENT 2:
Club Darnes, Libya
REF FPSD-5626
I Facts
1. AlQasim Sport Club and N’tji Amadou Samake concluded an employment contract (named
“Hold aplayer”) valid as from 26 January 2022 until 26 June 2022 (i.e. 5 months).
2. Accordingly, the player was entitled to a monthly salary of USD 3,000, plus “two ways flight
ticket go and back”.
3. The contract stipulated the following:
“7. The contract is effective from the date of signing the contract and the player passed the medical
examination.”
4. According to the information contained in the Transfer Matching System (TMS), a transfer
instruction from AS Real (Mali) to Al Qasim was entered on 28.01.2022 (Ref. 475063). Said
instruction was left as “Awaiting counter instruction”.
5. Following the same source, another instruction was entered on 26.01.2022 (Ref. 471572).
Ultimately, the Iraq FA confirmed the receipt of the International Transfer Certificate (ITC). The
ITC was delivered on 31 January 2022.
6. On 5 February 2022, the player concluded a contract with Club Darnes, valid as from the date
of signature until 4 June 2022.
7. Accordingly, the player was entitled to a total remuneration of USD 20,000, payable as follows:
USD 10,000 after the signature of the contract;
USD 5,000 “for the third month (April)”;
USD 5,000 “for the fourth month (May)”.
8. In addition, and according to TMS, on 5 February 2022, the Club Darnes entered a transfer
instruction (v) for the transfer of the player from AS Real de Bamako.
9. On 9 February 2022, the Libyan FC confirmed the receipt of the ITC.
10. On 31 March 2022, AlQasim Sport Club lodged a claim before FIFA for breach of contract
without just cause against the player and his new club and requested the payment of the
following amounts:
USD 20,000 as “compensation for breach and termination of contract”, corresponding to
six months of salaries and the costs of the tickets paid by the club from Mali to Iraq (note:
no evidence of payment on file);
USD 80,000 as “outstanding remuneration”, based “on the fact that the respondent left the
club where he was supposed to play as a key offence player”;
11. The Claimant argued that the player illegally signed a contract with his new club.
12. The player failed to initially provide a reply.
13. In its reply, Club Darnes (Respondent 2) explained that, when it hired the player, he presented
himself as a free agent following the expiration of his contract with Real Bamako Mali.
REF FPSD-5626
14. In this respect, the Respondent 2 presented a document called “Attestation de Libération”,
issued by the Secretary General of AS Réal de Bamako and confirming that the player was free
from any contract with sait club.
15. Darnes explained that the player categorically denied having signed any contract with the
Claimant.
16. In his replica, the Claimant noted that the Respondent 1 failed to reply to the claim, in
accordance with art. 21 par. 1 of the Procedural Rules.
17. The Claimant argued that, regardless of the actions of Club Darnes, art. 17 par. 2 of the
Regulations clearly establishes that in any case said club shall be held jointly and severally
liable.
18. The Claimant argued that the evidence provided by Darnes confirmes that the player signed
with AlQasim on 26 January 2022 and the left and signed with Darnes.
19. Thus, the Claimant insisted in its initial request.
20. The Respondent 1 replied when the Respondent 2 was invited to provide its duplica.
21. The player argued that he never arrived to Iraq and that the “pre-contract” stipulated that it
was subject to a medical examination.
22. The player further stated the following (free translation from French):
“This story of the ITC is a mistake of the Secretary of (…) Real de Bamako ) because I had told him
not to accept the request for an ITC from (…) Al Qasim Sport Club (…).
(…) I received the offer of the club Darnes of Libya and I preferred to go there and explain them my
situation with Al Qasim Sport Club which offered me a pre-contract but I never went there (…)”
REF FPSD-5626
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 Single Judge) 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 31 March 2022 and submitted for decision on 7 July 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 (March 2022 edition), it is competent to deal with
the matter at stake, which concerns an employment-related dispute with an international dimension
between an Iraqi club, a Malian player and a Libyan 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 (March 2022 edition), and considering that the
present claim was lodged on 31 March 2022, the March 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 abovementioned 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
6. The Chamber first noted that AlQasim Sport Club and the player N’tji Amadou Samake concluded an
employment contract valid as from 26 January 2022 until 26 June 2022.
7. The Chamber then noted that, on 5 February 2022, the player concluded a contract with Club Darnes.
REF FPSD-5626
8. Subsequently, the Chamber noted that AlQasim Sport Club lodged a claim before FIFA for breach of
contract without just cause against the player and Darnes, arguing that the player illegally signed a
contract with Darnes, insofar it already had a valid contract with him.
9. On the other hand, the Chamber noted that the player was invited to reply by no later than 2 May
2022, but that he only replied following the deadline granted by FIFA.
10. In this respect, the Chamber referred to art. 11 par. 4 of the Procedural Rules, according to which
“Submissions and evidence filed outside the relevant time limit shall be disregarded.
11. In addition, the Chamber noted that Club Darnes explained that, when it hired the player, he
presented himself as a free agent following the expiration of his contract with Real Bamako Mali.
12. In relation to said argument, the Chamber understood that, fundamentally, Darnes did not contest
the facts, but only expressed its unawareness about the player’s previous contractual condition with
the Claimant.
13. In view of the above, the Chamber understood that the main issue at stake is to determine whether
the contract between AlQasim and the player was valid and binding and, in the affirmative, what are
the consequences of the player’s conclusion of a contract with Darnes on 5 February 2022.
14. In this respect, the Chamber first referred to art. 18 par. 5 of the Regulations, which establish that “5.If
a professional enters into more than one contract covering the same period, the provisions set forth in
Chapter IV shall apply.”
15. Furthermore, when assessing the contract concluded between AlQasim and the player, the Chamber
the Chamber started by recalling its well-established jurisprudence which dictates that, in order for
an employment contract to be considered as valid and binding, apart from the signature of both the
employer and the employee, it should contain the essentialia negotii of an employment contract, such
as the parties to the contract and their role, the duration of the employment relationship and the
remuneration payable by the employer to the employee.
16. In casu, after a thorough analysis of the documentation on file, the Chamber concluded that all such
elements were included in the document filed by the player. In other words, the Chamber understood
that the legal document concluded by the parties (cf. point I 1 above) indeed included all the relevant
information at the basis of an employment relationship between contractual parties. Specifically, the
document contains the signature of both parties, provides for the duration of the employment
relationship (from 26 January 2022 until 26 June 2022) and the remuneration payable to the player.
Moreover, it clearly stipulates that the player is employed as a footballer with the club. Thus, the
Chamber concluded that the aforementioned contract is in fact a valid and binding employment
contract and shall be considered in the case at stake, as the contractual basis of the present dispute.
17. In view of the above, and following art. 18 par. 5, the Chamber established that, by signing a contract
with Darnes on 5 February 2022, i.e. during the period of validity of the contract with AlQasim, the
player breached his contractual obligations towards the latter. As a result, he must be held liable for
the termination without just cause of said contract.
REF FPSD-5626
ii. Consequences
18. Having stated the above, the members of the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
19. Having stated the above, the Chamber turned to the calculation of the amount of compensation
payable to the club by the player 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, the fees and expenses paid or incurred by the former club (amortised over
the term of the contract) and depending on whether the contractual breach falls within the protected
period.
20. 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.
21. In this regard, the Chamber established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
22. As a consequence, the Chamber determined that the amount of compensation payable by the player
to the club 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.
23. Bearing in mind the foregoing as well as the claim of the club, the Chamber proceeded with the
calculation of the monies payable to the player under the terms of the contract until its term.
Consequently, the Chamber concluded that the amount of USD 15,000 (i.e. 3,000*5, from February to
June 2022) serves as the basis for the determination of the amount of compensation for breach of
contract.
24. In continuation, the Chamber recalled that the player signed a contract with Darnes. According to the
constant practice of the Chamber as well as art. 17 par. 1 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 due by a player to his former club. In particular, the Chamber
explained that its standard practice is to calculate the average between the player’s remuneration
with his former club and his remuneration with the new club, for the exact same period of time
comprised between the early termination of the employment contract with the old club and the
original expiry date of such contract.
25. Indeed, in accordance with the employment contract signed with Darnes, the player was entitled to
USD 20,000 from February 2022 until 4 June 2022.
REF FPSD-5626
26. Thus, the Chamber concluded that between the date of early termination of the player’s contract with
his former club and its original expiry date, the average between his remuneration with the former
club and his current remuneration amounts to USD 17,500 [USD 15,000 (former contract) + USD
20,000 (new contract) / 2].
27. Consequently, on account of all of the above-mentioned considerations and the specificities of the
case at hand, the Chamber decided that the player must pay the amount of USD 17,500 to the club,
as detailed above, which was to be considered a reasonable and justified amount of compensation
for breach of contract in the present matter.
28. Furthermore, the Chamber decided that, in accordance with art. 17 par. 2 of the Regulations, Club
Darnes shall be jointly and severally liable for the payment of the aforementioned amount of
compensation.
29. In this respect, the Chamber was eager to point out that the joint liability of the player’s new club is
independent from the question as to whether the new club has committed an inducement to
contractual breach or any other kind of involvement by the new club. This conclusion is in line with
the well established jurisprudence of the Chamber that was repeatedly confirmed by the Court of
Arbitration for Sport (CAS).
iii.
Compliance with monetary decisions
30. 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.
31. In this regard, the Chamber highlighted that, against players, the consequence of the failure to pay
the relevant amounts in due time shall consist of a restriction on playing in official matches up until
the due amounts are paid. The overall maximum duration of the restriction shall be of up to six
months.
32. Therefore, bearing in mind the above, the Chamber decided that the player must pay the full amount
due (including all applicable interest) to the club within 45 days of notification of the decision, failing
which, at the request of the creditor, a restriction on playing in official matches for the maximum
duration of six months shall become immediately effective on the player in accordance with art. 24
par. 2, 4, and 7 of the Regulations.
33. 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.
34. In relation to the joint liability of Darnes, 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.
REF FPSD-5626
35. Therefore, bearing in mind the above, the Chamber decided that the club 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 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.
36. The respondents shall make full payment (including all applicable interest) to the bank account
provided by the club in the Bank Account Registration Form.
d. Costs
37. 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.
38. 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.
39. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made by any
of the parties.
REF FPSD-5626
III Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, AlQasim Sport Club, is partially accepted.
2.
The Respondent 1, N’tji Amadou Samake, has to pay to the Claimant, compensation for breach of
contract without just cause in the amount of USD 17,500.
3.
The Respondent 2, Club Darnes, is jointly and severally liable for the payment of the aforementioned
amount.
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 1 shall be restricted on playing in official matches up until the due amounts
are paid. The overall maximum duration of the restriction shall be of up to six months on
playing in official matches
2. The Respondent 2 shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration the ban shall be of
three entire and consecutive registration periods.
3. 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 paid by the end of the
aforementioned 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.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-5626
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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