Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed in Zurich, Switzerland, on 15 January 2020,
by Om ar Ongaro (Italy ), DRC judge,
on the claim presented by the player,
Mr Kabba S am bou, Gambia,
represented by Mr Antoine Semeria
as Claimant
against the club,
KF S kënderbeu Korçë, Albania,
represented by Mr Lorin Burba
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 31 January 2020, the Gambian player, Kabba Sambou (hereinafter: the player or the
Claimant) and the Albanian club, KF Skënderbeu Korçë (hereinafter: the club or the
Respondent) concluded an employment contract (hereinafter: the contract) valid as from the
date of signature until 30 June 2020.
2.
Pursuant to art. 6.1 of the contract, the Claimant was, inter alia, entitled to the following:
a) EUR 3,000 per month for the season 2017/2018;
b) EUR 4,000 per month for the season 2018/2019;
c) EUR 5,000 per month for the season 2019/2020.
3.
According to art. 6.2 of the contract, “payable months shall be considered the months failing
during the period of the domestic football season or the international corroborated with the
domestic football season, whichever begins first”.
4.
On 21 May 2019, the Claimant informed the Respondent in writing that, “since the entry into
force of the contract [he] should have received a total remuneration of [EUR] 56,500, the
equivalent of 15 months salary”, but “he [only received EUR] 40,216”. In this context, the
Claimant sustained that the total amount of EUR 16,284 was outstanding to him, providing the
club 10 days to remedy the default.
5.
According to the Claimant, on 28 May 2019, the Respondent paid the player the amount
of 99,500 Albanian Lek [ALL], “the equivalent of [EUR] 850”.
6.
On 7 June 2019, the player sent a correspondence to the club by means of which he underlined
that the amount of EUR 19,569 was outstanding to him. The name of the attachment is “Early
termination employment contract Mr Sambou”, but taking into account the content of said
attachment, it appears that the document was mistakenly sent by the Claimant.
7.
In view of the above, on 8 June 2019, the Claimant sent a further correspondence to the
Respondent and informed the latter that the attached letter “cancels and replaces the one
sent on [7 June 2019]” (cf. I.6). By means of said letter, the Claimant unilaterally terminated
the contract holding, inter alia, that the club “has regularly made incomplete payments since
the beginning of the execution of the employment contract […]”.
8.
On 20 June 2019, amended on 5 August 2019, the Claimant lodged a claim against the
Respondent in front of FIFA, requesting the following:
a) EUR 19,569, plus 5% interest p.a., corresponding to “unpaid wages since 30 January 2018”;
b) EUR 65,300, plus 5% interest p.a., corresponding to “wages that should have been paid to
[the player] if his employment contract had not been terminated early due to the default
of his former club”.
Player Kabba Sambou, Gambia / Club KF Skënderbeu Korçë, Albania
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9.
Furthermore, with regard to the interest, the Claimant requested “that in the absence of
payment of all convictions within 30 days of notification of the decision taken, the sums will
bear interest at the rate of 5% per annum”.
10. In its reply to the Claimant’s claim, the Respondent requested a deadline extension, which was
granted on 13 November 2019. However, despite having been granted said deadline extension,
the Respondent failed to provide its reply.
II.
Cons iderations of the DRC judge
1.
First of all, the Dispute Resolution Chamber judge (hereinafter: the DRC judge or the judge)
analysed whether it was competent to deal with the case at hand. In this respect, it took note
that the present matter was submitted to FIFA on 20 June 2019. Taking into account the
wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand (cf. article
21 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 1 of the Procedural Rules and confirmed
that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on
the Status and Transfer of Players (edition 2020), the DRC judge is competent to deal with the
matter at stake, which concerns an employment-related dispute with an international
dimension between a Gambian player and an Albanian club.
3.
In continuation, the 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, and considering that the present claim was
lodged on 20 June 2019, the June 2019 edition of said regulations (hereinafter: Regulations)
were applicable to the matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been established, the
judge entered into the substance of the matter. In this respect, it started by acknowledging all
the above-mentioned facts, the arguments and the documentation submitted by the Claimant
and the Respondent. However, the judge 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.
5.
First of all, the DRC judge noted that the parties entered into an employment contract valid as
from 31 January 2018 until 30 June 2020, according to which the Respondent undertook to pay
the Claimant EUR 3,000 per month for the season 2017/2018; EUR 4,000 per month for the
season 2018/2019; and EUR 5,000 per month for the season 2019/2020. Furthermore, on 8 June
2019, the player terminated the employment contract in writing that “more than 4 months of
unpaid wages” were outstanding to him.
Player Kabba Sambou, Gambia / Club KF Skënderbeu Korçë, Albania
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6.
In continuation, the DRC judge recalled that the Claimant lodged a claim in front of FIFA on 20
June 2019, for breach of contract which was subsequently amended on 5 August 2019,
requesting inter alia the amount of EUR 19,569 as outstanding remuneration, as well as the
amount of EUR 65,300 as compensation for the alleged breach of contract by the Respondent.
7.
As a result, the judge established that the primary issue at stake is determining whether the
Claimant had just cause to terminate the contract with the Respondent on 8 June 2019. In this
respect, the DRC judge deemed it essential to make a brief recollection of the Claimant’s
arguments regarding the contract termination, and in particular, verify which amount, if any,
had in fact remained outstanding on the date of termination.
8.
First of all, the DRC judge took note that, on 21 May 2019, the player put the club in default
for the payment of EUR 16,284, corresponding to “his wages […] paid late and incompletely”,
setting a 10 days’ time limit to remedy the default.
9.
In addition, the DRC judge noted that, according to the player, “[the club] reacted to his
[default letter] on 28 May 2019 with a payment of 99,500 [ALL], the equivalent of [EUR] 850”.
10. Moreover, the DRC judge took note that, according to the player, he had just cause to
unilaterally terminate the employment contract on 8 June 2019, since the Respondent failed to
comply with its contractual obligations. In this regard, the player affirmed that he had no
alternative but to terminate the contract and deemed that the club should be held liable for
the early termination of said contract.
11. Subsequently, the judge noted that the Respondent failed to present its response to the claim
of the Claimant, in spite of the fact that FIFA had granted the club a 7 days’ deadline extension
on 13 November 2019. By not presenting its position to the claim, the DRC judge was of the
opinion that the Respondent renounced its right of defence and, thus, accepted the allegations
of the Claimant.
12. In this context, as a consequence of the aforementioned consideration, the judge concurred
that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the
basis of the documentation already on file; in other words, upon the statements and
documents presented by the Claimant.
13. In light of the above, given that according to the player on the date of termination a total
amount of EUR 19,569 was outstanding to him, and given the fact that the Respondent failed
to reply to the Claimant’s claim, the DRC judge determined that a total amount of EUR 19,569
was outstanding to the player on the date of termination.
14. In this respect, the DRC judge referred to art. 14bis par. 1 of the Regulations, which, inter alia,
stipulates that, in case a club unlawfully fails to pay a player at least two monthly salaries on
their due dates, the player will be deemed to have had a just cause to terminate his contract,
provided that he has put the debtor in default in writing.
Player Kabba Sambou, Gambia / Club KF Skënderbeu Korçë, Albania
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15. Consequently, on account of the above, considering that when the player terminated the
contract an amount corresponding to more than 4 monthly salaries was outstanding, and more
than 15 days had elapsed as from the date in which the player sent the default letter requesting
his outstanding salaries, the DRC judge took into account its well-established jurisprudence and
concluded that the Claimant had a just cause to unilaterally terminate the employment
contract on 8 June 2019.
16. As a result, the DRC judge decided that the Respondent is to be held liable for the early
termination of the employment contract with just cause by the Claimant.
17. Having established that the Respondent is to be held liable for the early termination of the
employment contract, the DRC judge focused its attention on the consequences of such
termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC judge
established that the Claimant is entitled to receive from the Respondent compensation for
breach of contract, in addition to any outstanding payments on the basis of the relevant
employment contract.
18. Along those lines, the judge first referred to the Claimant’s request regarding the outstanding
remuneration at the time of the unilateral termination of the employment contract. In this
respect, the DRC judge concurred that the Respondent must fulfil its obligations as per the
employment contract in accordance with the general legal principle of “pacta sunt servanda”.
19. In view of the above, and taking into account that the Respondent failed to present its response
to the claim of the Claimant, the DRC judge decided that the Claimant was entitled to receive
the amount of EUR 19,569 as outstanding remuneration, plus 5% interest p.a. as of 30 days
from the notification of the decision until the date of effective payment.
20. Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the DRC judge
decided that the Claimant is entitled to receive compensation for breach of contract from the
Respondent.
21. In continuation, the judge focused its attention on the calculation of the amount of
compensation for breach of contract due to the Claimant by the Respondent in the case at
stake. In doing so, the DRC judge 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.
22. In application of the relevant provision, the DRC judge held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which the
Player Kabba Sambou, Gambia / Club KF Skënderbeu Korçë, Albania
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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 DRC judge established that no
such compensation clause was included in the employment contract at the basis of the matter
at stake.
23. As a consequence, the judge determined that the amount of compensation payable by the
Respondent to the Claimant had to be assessed in application of the parameters set out in art.
17 par. 1 of the Regulations. Bearing in mind the foregoing, the DRC judge proceeded with the
calculation of the monies payable to the Claimant under the terms of the employment contract
as from its termination until its regular expiry date, i.e. 30 June 2020, and concluded that the
Claimant would have been entitled to receive EUR 64,000. Consequently, the DRC judge
concluded that the amount of EUR 64,000 serves as the basis for the final determination of the
amount of compensation for breach of contract in the case at hand.
24. In continuation, the DRC 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 able to reduce his loss of income. According to art. 17 par. 1 point ii) of the
Regulations, such remuneration under a new employment contract shall be deducted from the
residual value of the contract that was terminated early, in the calculation of the amount of
compensation for breach of contract (“the mitigated compensation”).
25. In this respect, the DRC judge noted that the Claimant did not conclude any new employment
contract.
26. Consequently, in view of the above, the DRC judge decided that the Respondent must pay the
total amount of EUR 64,000 to the Claimant, which is considered by the DRC judge to be a
reasonable and justified amount as compensation for breach of contract.
27. In addition, taking into account the Claimant’s request, the DRC judge decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as
of 30 days from the notification of the decision.
28. The DRC judge concluded its deliberations in the present matter by establishing that any
further claim lodged by the Claimant is rejected.
29. Furthermore, the judge referred to par. 1 and 2 of art. 24bis 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.
30. In this regard, the DRC judge pointed out 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 and for the maximum
duration of three entire and consecutive registration periods.
Player Kabba Sambou, Gambia / Club KF Skënderbeu Korçë, Albania
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31. Therefore, bearing in mind the above, the DRC judge decided that, in the event that the
Respondent does not pay the amount due to the Claimant within 45 days as from the moment
in which the Claimant, following the notification of the present decision, communicates the
relevant bank details to the Respondent, a ban from registering any new players, either
nationally or internationally, for the maximum duration of three entire and consecutive
registration periods shall become effective on the Respondent in accordance with art. 24bis
par. 2 and 4 of the Regulations.
32. Finally, the DRC judge recalled that the above-mentioned ban will be lifted immediately and
prior to its complete serving upon payment of the due amount, in accordance with art. 24bis
par. 3 of the Regulations.
*****
III. Decis ion of the DRC judge
1.
The claim of the Claimant, Mr Kabba Sambou, is partially accepted.
2.
The Respondent, KF Skënderbeu Korçë, has to pay to the Claimant outstanding remuneration
in the amount of EUR 19,569, plus 5% interest p.a. as of 30 days from the notification of the
present decision until the date of effective payment.
3.
The Respondent has to pay to the Claimant compensation for breach of contract in the amount
of EUR 64,000, plus 5% interest p.a. as of 30 days from the notification of the present decision
until the date of effective payment.
4.
Any further claim lodged by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent, immediately and directly, preferably to the
e-mail address as indicated on the cover letter of the present decision, of the relevant bank
account to which the Respondent must pay the amounts mentioned under III.2. and III.3..
6.
The Respondent shall provide evidence of payment of the due amounts in accordance with III.2.
and III3. to FIFA to the e-mail address [email protected], duly translated, if need be, into one of
the official FIFA languages (English, French, German, Spanish).
7.
In the event that the amounts due plus interest in accordance with III.2. and III.3. are not paid
by the Respondent w ithin 45 day s as from the notification by the Claimant of the relevant
bank details to the Respondent, the Respondent shall be banned from registering any new
players, either nationally or internationally, up until the due amounts are paid and for the
maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the
Regulations on the Status and Transfer of Players).
Player Kabba Sambou, Gambia / Club KF Skënderbeu Korçë, Albania
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8.
The ban mentioned in III.7. will be lifted immediately and prior to its complete serving, once
the due amounts are paid.
9.
In the event that the aforementioned sums plus interest are still not paid by the end of the ban
of three entire and consecutive registration periods, the present matter shall be submitted,
upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC.
Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber).
Note relating to the motiv ated decis ion (legal remedy):
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly
within 21 days of receipt of notification of this decision and shall contain all the elements in
accordance with point 2 of the directives issued by the CAS. Within another 10 days following the
expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Kabba Sambou, Gambia / Club KF Skënderbeu Korçë, Albania
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