Labour Disputes
Texto da decisão
REF FPSD-2760
Decision of the
Dispute Resolution Chamber
passed on 25 November 2021
regarding an employment-related dispute concerning the player Sekou Sanogo
BY:
Frans DE WEGER (Netherlands), Chairperson
Mario FLORES CHEMOR (Mexico), member
Stefano SARTORI (Italy), member
CLAIMANT:
Sekou Sanogo, Côte d'Ivoire
RESPONDENT:
Ittihad FC, Saudi Arabia
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REF FPSD-2760
I.
Facts
1. On 21 December 2019, the player Sekou Sanogo and Ittihad FC concluded a first employment
contract, valid as from 7 January 2019 until 30 June 2022.
2. On 25 November 2019, the Claimant lodged a claim before FIFA (19-02169).
3. On 19 January 2020, the parties concluded a second employment contract with the following
contents:
4- 1- Immediate payment:
The advance payment of 05/07/2019 (due under the former contract) plus one monthly salary of August
2019 and expenses still to be reimbursed to the former contract (total amount USD 770,908) will be
paid immediately after signature of this contract.
2- Amounts representing the salaries for September, October, November and December 2019 (i.e. a
total amount of USD 757,768) will be paid to the Player by no later than 30 June 2020.
3- Salary:
For the period 19/01/2020 to 30/06/2020, an additional monthly salary of USD 189,442.22 will be paid
in January, February, March, April, May and June 2020, each by the end of a calendar month;
For the season 2020/2021, the total salary shall be USD 2,841,634 net (USD 568,326 net paid before
the 05/07/2020 and the rest divided in 12 equal monthly salary payments of USD 189,442.33 paid by
the end of each month); For the season 2021/2022, USD 2,841,634 net (USD 568,326 net paid before
the 05/07/2021 and the rest divided in 12 equal monthly salary payments of USD 189,442.33 paid by
the end of each month);
4. The player subsequently transferred on loan to the Serbian club, FK Red Star Belgrade.
5. On 19 January 2020, the parties concluded an additional agreement with the following conditions:
“2. However, in order to reduce the financial disadvantage of the player due to the loan of the
player, the parties agree what follows:
a. Item 4, paragraph 1 (immediate payments) remains in force and the player is therefore entitled
to a payment of USD 770,908 net due immediately after signature of the professional football
player contract between the parties.
b. Item 4, paragraph 2 remains in force and the player is therefore entitled to a payment of USD
757,768 net due no later than 30 June 2020.
c. Item 4, paragraph 3 (Salary) is adjusted for the duration of the loan and the player shall receive
the following bonuses for the period of the loan from ITTIHAD FC to FK CRVENA ZVEZDA:
− For the period 19/01/2019 to 30/06/2020, a monthly payment of USD 113,665.33 net will be
made in January, February, March, April, May and June 2020, each by the end of the respective
calendar month;
− For the season 2020/2021, a payment of USD 340,995.60 net, due on 5 July 2020 at the latest,
will be made;
− For the period 01/07/2020 to 19/01/2021, a monthly payment of USD 113,665.33 net will be
made in July, August, September, October, November, December and January, each by the end of
the respective calendar month;
[…]
6. On 6 February 2020, the Claimant (via his legal representative) sent a letter to the legal
representative of the club indicating the following:
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REF FPSD-2760
“I very much regret to inform you that as of today, 6 February 2020, lttihad FC has not made the
payment of USD 770,908 due on 19 January 2020 nor the payment of USO 113,665 due on 31
January 2020.
Instead, today my client received a payment of USD 189' 442, which is, as you of course know,
the initial monthly salary agreed on in the player's contract.
Perhaps this is a misunderstanding - however, your client is currently in default of payment of USD
695,131.”
7. On 3 March 2020, the Claimant (via his legal representative) sent a letter to the legal representative
of the club indicating the following:
“I am extremely sorry to inform you that your client, lttihad FC, is not respecting its contractual
obligations and unfortunately, significant salary payments from my client have still not been paid.
This is particularly disturbing as my client, in a spirit of goodwill and trusting in the promises made
by lttihad FC, has withdrawn the proceedings before FIFA. It is unprofessional, untrustworthy and
completely unacceptable that salary payments are not being made as agreed on from day one
under the new contract.”
8. On 3 March 2020, the Claimant sent another default notice, indicating the following:
“Salam aleikum and I hope this letter finds you in good health.
(…)
In accordance with these Contracts, your Club was obligated to make to my client till the present day
the following salary payments:
• USD 770,908.00 net by 20 January 2020 at the latest
• USD 113,665.33 net by 31 January 2020 at the latest and
• USD 113,665.33 net by 29 February 2020 at the latest,
thus overall USD 998,238.66 net. Despite multiple requests for payment of the outstanding amounts to
your lawyer, only USD 189,442.00 has been paid on 6 February 2020.
As of today, your club is therefore in default of salary payments of USD 808,796.66 net.
(…)
In the event that the above-mentioned amount of USD 808,796.66 net is not received in full until 13
March 2020, the Player reserves the right to take legal action against your Club, in particular to file a
complaint with FIFA DRC , to claim payment and to claim for sanctions imposed on Ittihad FC according
to Art. 12bis FIFA RSTP.”
9. On 3 March 2020, the legal representative of the club replied, noting that he his sure “that this
situation can be clarified very swiftly.”
10. On 19 March 2020, the legal representative of the club sent a new letter indicating the following:
“My client is aware that salary payments due in January and February 2020 are sttil pending and
my client sincerely regrets this. My client Is doing Its utmost to make this payment very urgently and
it treats this matter as a top priority.
However, as you are aware, the current Covid19 situation is also heavily affecting the banking
sector in Saudi Arabia.”
11. On 13 April 2020, the club sent a letter to “allPlayers”, indicating the following:
(…)
3) Financial Impact:
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The COVID-19 has affected all clubs financially including Al ittihad SFC. The suspension of sport
activities as described earlier adversely impacted the club resulting in losses of revenue streams such
as the tickets sales, payments from sponsors, TV rights and many others. As such, the club is
currently unable to continue the payments of the monthly salaries and other payments as expected.
One-to-one emails or phone call may be communicated with you to explain more on basis of
individual employment contracts.
4) Force Majeure:
Article 27 of the FIFA RSTP states that cases of force majeure shall be decided by the FIFA Council, whose
decisions are final. On 07 April 2020, FIFA has announced that the COVID-19 is a case of force majeure.
12. On 29 April 2020, the legal representative of the club sent the following letter to the player:
“(…) during this time of crisis, a reduction of the salaries of all professional players and the managing
staff of Ittihad FC is necessary. This measure is reasonable and proportionate in order to safeguard the
interests of the whole Ittihad FC family - especially to guarantee that our client can still make a
reasonable payment of salary to the staff employees with lower incomes and in order to avoid any
redundancy.
The policy that will have to be applied during the COVID-19 pandemic is the fol-lowing:
- For all employees, a basic amount of SAR 20000.-./Per month remains guaranteed.
- The part of the contractually agreed monthly salary exceeding SAR 20,000.- will be reduced by 50%.'
- Period of the policy: 15 March 2020 until the resumption of the sportive activities, club training and
the disappearance of the COVID-19 pandemic.
Since your client belongs Co the group of high-income earners of the professional players at Ittihad FC,
lie is subject to the above-mentioned policy.”
13. On 14 May 2020, the legal representative of the player replied as follows:
(…) Currently outstanding, but already due for payment for weeks or even months, is an amount of
USD 467'801.32 net, including salary payments of January, February, March and (since 1 May 2020)
also April 2020 in the amount of USD 113,665.33 each.
In the event that the January, February and March salaries in the amount of total USD 340,995.99 net
are not received in full until 25 May 2020, my client reserves the right to take legal action against
lttihad FC, in particular to file a complaint with FIFA DRC according to Art. 12bis FIFA RSTP.
My client further reserves all other rights, in particular the right to terminate the contract with just
cause according to Art. 14bis FIFA RSTP.
(…)
The specific measures announced by you in general as well as in the letter of 29 April 2020, in
particular a retrospective salary reduction of 50 percent "until the resumption of the sportive activities,
club training and the disappearance of the COVID-19 pandemic" [sic!] ordered unilaterally by the club
without any prior consultation with my client, are inadmissible, excessive and unacceptable and in
particular violate the provisions of contractual stability and the relevant FIFA Circular Covid-19 Football
Regulatory Issues.
14. On 19 June 2020, the legal representative of the player acknowledged the payment of USD
165,721.75, while noting that USD 74,748.91 remain outstanding.
15. On 9 July 2020, the legal representative of the player sent a new letter noting the following:
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REF FPSD-2760
“The payment of USD 165, 721.25 will therefore be offset by my client against the regular salary for
March and April 2020; the balance of the salary for March and April 2020 is therefore USD 61,609.41
net (2 x USD 113,665.33 - USD 165,721.25).
(…)
In the event that the balance of the March and April salaries and the full May 2020 salary in the
amount of total USD 175,274.74 net are not received in full until 20 July 2020, my client reserves the
right to take legal action against Ittihad FC, in particular to file a complaint with FIFA DRC according to
Art. 12bis FIFA RSTP.
16. On 19 August 2020, the legal representative of the player sent a default notice, requesting the
payment of the following:
“I then note that the salary owed and due on 30 June 2020 in the amount of USD 113,665.33 net has
not been paid; also owed and due on 30 June 2020 was the payment of USD 757,768 net according
to Item 4, para 2 of the employment contract in connection with IV No. 2 lit. b of the additional
Agreement and the bonus for the season 2020/2021 of USD 340,995.60 net, due on 5 July 2020
according to IV No. 2 lit. b 2. lemma of the additional Agreement. All three above-mentioned amounts
totaling USD 1,212,428.93 net are therefore more than 30 days overdue.
With reference to the relevant FIFA regulations, in particular Art. 12bis FIFA RSTP, I hereby grant your
client a grace period of 10 days, i.e. until 29 August 2020, to pay the amount of USD 1 '212'428.93
net.
On 26 October 2020, the legal representative of the player acknowledged having received USD
113,665.
17. On 8 December 2020, the legal representative of the player sent a new default notice, indicating the
following:
- Despite multiple payment requests and legal warnings, the amount of USD 757,768.00 net
representing the salaries for September, October, November and December 2019 according to
Item 4. 2 of the Employment Contract in connection with IV. 2. lit. b. of the Additional Contract
due on 30 June 2020 despite remains outstanding;
- Despite multiple payment requests and legal warnings, the amount of USD 340,995.60 net
representing a premium according to IV. 2. lit. c second lemma of the Additional Contract due on
5 July 2020 remains outstanding;
- Despite multiple payment requests and legal warnings, a minor amount of USD 470.66 net (still
owed under the old contract) and another amount of USD 30,000.00 net representing a
contractual penalty the parties agreed on in the Payment agreement of 26 August 2020 remain
outstanding;
Regarding the monthly basic salary, my client - after a procedure was initiated before the FIFA DRC
- received the basic salary for January and February 2020 (USD 113,665.33 net each) in September
2020. Ittihad FC then made a payment of USD 165,721.75 on 19 June 2020 and a payment of
USD 113,665.00 on 20 October 2020. The undersigned asked the Club what outstanding salaries
were supposed to be settled with these payments but received no response in either case.
In response, the undersigned declared that the two payments of June and October 2020 were set
off against the longest outstanding base salary claims for the months of March, April and May
2020, whereby, with respect to May, a balance of my client of USD 61,608.25 net still remains and
is outstanding after the set-off.
All further salaries since June 2020 remained unpaid.
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In summary, Ittihad FC owes my client salary payments of USD 1,811,226.24 net due as of today,
which constitutes a clear case of default in the sense of Art. 14bis FIFA RSTP and therefore a
repeated and persistent breach of contract by your Club.
With reference to the relevant FIFA regulations, in particular Art. 14bis FIFA RSTP, I hereby grant
your client a deadline of 15 days, i.e. until 24 December 2020, to pay the outstanding salaries of
my client.
18. On 16 December 2020, the Claimant sent a last default notice.
19. On 29 December 2020, the legal representative of the player sent a termination notice, indicating the
following:
“I hereby terminate the employment contract of 19 January 2020 (…) with immediate effect for just
cause.
The termination for just cause is justified because:
the amount of USD 757,768.00 net representing the salaries for September, October, November and
December 2019 according to Item 4. 2 of the Employment Contract in connection with IV. 2. lit. b. of
the Additional Contract due on 30 June 2020 remains outstanding;
the amount of USD 340,995.60 net representing a premium according to IV. 2. lit. c second lemma of
the Additional Contract due on 5 July 2020 remains outstanding;
the amount of USD 470.66 net (still owed under the old contract) and due since 19 January 2020 and
another amount of USD 30,000.00 net representing a contractual penalty the parties agreed on in the
Payment agreement of 26 August 2020 and due on 10 September 2020 remain outstanding;
the player's regular salary for the month of May was only partially paid (USD 61,608.25 net remain
outstanding), all other regular monthly salaries (June, July, August, September, October and November
2020) are due and remain unpaid to date.
(…)
Moreover, it has to be explicitly pointed out once again that my client over the last two years has never
received a single payment correctly. My client's trust in Ittihad FC has therefore been permanently and
irrevocably shaken to such an extent that a further continuation of the contractual relationship is
unbearable.
Therefore, the present employment relationship is terminated with immediate effect for just cause and
my client will apply to FIFA for a formal decision.
20. On 25 January 2021, the player concluded an employment contract with Red Star Belgrade, valid
until 31 December 2022 for a monthly salary of RSD 32,000 (equivalent to approx. 315 USD)
21. According to the Annex to the aforementioned contract, the player was entitled to the following:
3-1 The Player is entitled to a loyalty fee for the period from 25 January 202 I to 31 December 2021
in the
net amount of EUR 297,000.00 (note: equivalent to approx. USD 340,000)
(…)
- The Player is entitled to a loyalty fee for the period from 1 January 2022 to 31 December 2022
in the
net amount of EUR 366,000 (note: equivalent to approx. USD 423,000)
Accordingly, it can be estimated that, from February 2021 until 30 June 2022, the player would
have earned the following: 340,000 + 423,000/2 + 315*18 = 340,000 + 211,500 + 5,670 =
USD 557.170
22. On 8 June 2021, the player Sekou Sanogo lodged a claim before FIFA and requested the payment
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of the following amounts:
- USD 788,794.72 net as outstanding remuneration, plus 5% interest p.a. as from 30 December
2020, detailed as follows:
USD 61,608.25
Residual May 2020 salary (see margin 50 et seq. above).
USD 113,665.33
June 2020 salary
USD 757,768.00
Amounts representing the salaries for September, October, November and
December 2019 according to Item 4. 2 of the Contract in connection with IV.
2. lit. b. of the Additional Contract; this amount is still outstanding, but has
already been awarded to the Claimant by Decision of the Dispute Resolution
Chamber of 28 April 2021, Ref. No. 20-01388, and is therefore not taken into
account in the calculation of the amount of damages in the present
proceedings;
USD 340,995.60
Premium according to IV. 2. lit. c second lemma of the Additional Contract;
this amount is still outstanding, but has already been awarded to the Claimant
by Decision of the Dispute Resolution Chamber of 28 April 2021, Ref. No. 2001388, and is therefore not taken into account in the calculation of the amount
of damages in the present proceedings;
USD 113,665.33
July 2020 salary
USD 113,665.33
August 2020 salary
USD 113,665.33
September 2020 salary
USD 113,665.33
October 2020 salary
USD 113,665.33
November 2020 salary
USD 106,332.08
pro-rata December 2020 salary (USD 113,665.33 / 31 x
29),
USD 30'000
as per settlement agreement of 26 August 2020; this amount is still
outstanding but has already been awarded to the Claimant by Decision of the
Dispute Resolution Chamber of 19 May 2021, Ref. Nr. 20-01439, and is
therefore not taken into account in the calculation of the amount of damages
in the present proceedings;
- USD 3,351,385.45 net as compensation for breach of contract without just cause, calculated as follows:
− USD 76,999 net (USD 113,665.33 / 31 x 21) for the period 30 December 2020 to 19 January 2021
(Claimant would have been on loan to Red Star Belgrade)
− USD 73,332.50 net (USD 189,442.33 / 31 x 12) for the rest of January 2021 (20 January – 31
January 2021)
− USD 947,211.65 net (5 months at USD 189,442.33 net each) for the rest of the season 2020/2021
(February 2021 – June 2021) and
− USD 2,841,634.00 net for the season 2021/2022.
Minus mitigation: EUR 480,000 net, equivalent to USD 587,791.20
Plus USD 568,326.99 net as additional compensation.
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23. In addition, the Claimant requested the payment of USD 568,326.99 net as additional
compensation plus 5% interest p.a. as from 30 December 2020 until the date of effective payment.
24. In its reply to the Claim, the Respondent argued that “it is true that some amounts have unfortunately
remained pending, Ittihad FC is currently doing its utmost to meet these financial obligations and it has
no intention of ignoring its contractual commitments.”
25. However, according to the Respondent, “for the vast majority of the financial claims that are made today,
there is no legal basis”
26. In particular, the Respondent denied the payment of outstanding salaries for March to June 2020, since
“Those salary payments were subject to a necessary, proportionate and justified reduction, triggered by
the COVID-19 crisis and the suspension of the competition in Saudi Arabia”
27. The Respondent considered that it transparently disclosed the financial impact of COVID-19 on the club
and urged its employees to find a balanced and suitable solution for both parties.
28. The Respondent argued, in relation to the deductions performed due to COVID-19, the mechanism
applied to partially reduce salary payments to its employees “was designed to be as proportionate as
possible” since “every employee still had a guaranteed basic salary of SAR 20,000.- Only amounts in
excess of this basic salary were reduced by 50%. In other words, to protect the weakest, the employees
with the highest income had to make an effort for the benefit of all staff workers of the club.
29. As to the outstanding salaries, the Respondent argued that it “does not contest that these payments are
still due” and explained that it “trusts that in relation to those, in principle undisputed, overdue salary
payments, an amicable solution can swiftly be found.
30. As to the termination of the contract claimed compensation, the Respondent expressed that it “leaves it
to FIFA to assess whether or not the outstanding salary payments justified the termination of the
Employment Contract by Claimant.”, but wished to add that “[financial] difficulties existed already in
January 2020, and yet, the Player was more than happy to conclude a new employment contract with
Ittihad FC, in full knowledge of the financial challenges.”
31. As to the payable compensation, the Respondent considered that the request of the player is excessive.
32. In sum, the Respondent summarized its position as follows:
o The salaries of March 2020 – June 2020 were subject to a necessary, proportionate and legal salary
reduction in light of the COVID-19 crisis and the suspension of the competition in Saudi Arabia.
o All prerequisites for an adaptation of the salary payments are met.
o Ittihad FC acted in strict compliance with FIFA Guidelines, SAFF Regulations and the Directives issued
by the Saudi Professional League.
o Therefore, Ittihad FC cannot owe any additional payments to Claimant for the months of March, April,
May and June 2020, contrary to what the Claimant requests.
o Equally, Claimant's right to receive compensation for the breach of contract must be rejected or the
amount significantly reduced: (i) the value of the new contract with Red Star shall be duly deducted, (ii)
it was demonstrated that the Claimant did not comply with his duty to mitigate damages.
o In the event such compensation shall be granted, any potential compensation must be substantially
reduced based on the principle of clausula rebus sic stantibus, reflecting today's reality after the impact
of the COVID-19 on football.
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33. In his replica, the Claimant rejected the Respondent’s arguments.
34. In relation to the COVID-19 pandemic, the Claimant argued that the Respondent has nowhere shown
that such a force majeure situation has been declared by the Government of Saudi Arabia or even that
a unilateral salary reduction has been postulated by law.
35. In this respect, the Claimant argued that It should be noted that at no time were there any consultations
with him, let alone negotiations on salary reductions. This is exactly what the FIFA COVID-19 Guidelines
provide for.
36. As to the mitigation of damages, the Claimant argued that in principle, only what the Claimant effectively
earned or wilfully failed to earn after the termination of the employment contract with Ittihad FC, i.e.
after 29 December 2020, is to be taken into account.
37. In view of the above, the Claimant requested the following:
“1. To establish that the Respondent breached the Contract signed with the Claimant;
2. To condemn the Respondent to pay the Claimant unpaid Salaries of USD 788,794.72 net plus 5%
interest p.a. as from 30 December 2020 until the date of effective payment.
3. To condemn the Respondent to pay the Claimant Mitigated Compensation in the amount of USD
3,351,385.45 net plus 5% interest p.a. as from 30 December 2020 until the date of effective payment.
4. To condemn the Respondent to pay the Claimant Additional Compensation in the amount of USD
568’326.99 net plus 5% interest p.a. as from 30 December 2020 until the date of effective payment.
5. To sanction the Respondent for multiple breach of contract in accordance with Art. 17 par. 4 RSTP.”
38. As final comments, the Respondent insisted in its previous arguments.
39. In particular, as to the deductions made within the context of the COVID-19 pandemic, the Respondent
argued that it demonstrated (1) the proportionate approach it took towards its international, "highearning" players to mitigate this impact, (2) the fact that all of this was in line with a Directive of the
Saudi Arabian Pro League and FIFA Guidelines, (3) the fact that almost all players of Ittihad agreed to
these measures and (4) the fruitless attempts to find an amicable solution with Claimant on any of these
topics
40. As to the payable compensation, the Respondent argued that any compensation awarded must be very
substantially reduced, based on the general principle of clausula rebus sic stantibus.
41. As to the mitigation, the Respondent argued that the player failed to comply with his duty to mitigate
damages, since he now effectively receives a salary which is approximately 80% lower than his previous
salary
42. The Respondent considered that there is no explanation at all why Claimant would suddenly, without
credible reason, accept a very substantial salary reduction with Red Star, if not for the fact that he was
speculating that he could "fill up" the remainder through a compensation claim against Ittihad.
43. Consequently, the Respondent considered that FIFA must therefore use its discretion to deduct a much
higher amount as mitigation of damages than USD 587,791.20, and proposed to mitigate at least USD
2,000,000.
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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 Chamber or DRC)
analysed whether it was competent to deal with the case at hand. 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 Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. b) of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1
b) of the Regulations on the Status and Transfer of Players (August 2021 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 an Ivorian player and
a Saudi club.
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 (August 2021 edition), and
considering the date of the claim}, the February 2021 edition of said regulations (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been established, the DRC
entered into the substance of the matter. In this respect, the DRC started by acknowledging all
the above-mentioned facts as well as the arguments and the documentation on file. However,
the DRC emphasized that in the following considerations he will refer only to the facts, arguments
and documentary evidence, which he considered pertinent for the assessment of the matter at
hand.
b. Main legal discussion
5.
Entering into the analysis of the matter, the Chamber noted that the parties initiated their
employment relationship on 21 December 2018 and that, on 19 January 2020, they concluded a
second employment contract with the conditions expressed in point I.4 above. The Chamber also
noted the existence of an additional agreement signed on the same date.
6.
In this respect, the Chamber further took note of the fact that the parties were already involved
in previous disputes before FIFA (20-01388 and 20-01439) concerning outstanding remuneration.
7.
Subsequently, the Chamber noted that the player lodged a claim before FIFA for outstanding
remuneration and breach of contract without just cause. In particular, the Chamber noted that
the player requested the payment of the outstanding amounts quoted in point I. 24 above, as
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well as compensation for breach of contract without just cause, insofar he would have terminated
the contract with just cause on 29 December 2020 due to the existence of overdue payables.
8.
On the other hand, the Chamber took note of the Respondent’s position, which partially
acknowledged the claimed debts, although expressed that it performed some deductions due to
the COVID-19 pandemic and its related financial effects.
9.
In view of the above, the Chamber understood that the main legal issue at stake is to determine
whether the player had just cause to unilaterally terminate the contract on 29 December 2020.
10. In this respect, the Chamber noted that, in principle, it appears that at the date of termination of
the contract, the club owed to the player a very significant amount of a least one million USD (cf.
point I. 21 for complete breakdown).
11. Moreover, as to the alleged salary deductions, following the FIFA COVID-19 Guidelines, the
Chamber noted that unilateral decisions to vary agreements will only be recognised where they
are made in accordance with national law or are permissible within CBA structures or another
collective agreement mechanism and that, in particular, when assessing whether a decision is
reasonable, the DRC or the PSC may consider, without limitation whether the club had attempted
to reach a mutual agreement with its employee(s).
12. The Chamber reviewed the information gathered during the course of the present investigation,
and observed that, as it already happened established in the previous decision 20-01388, the club
did not provide any evidence that the club tried to negotiate in good faith any deduction for the
amounts due
13. The Chamber therefore confirmed its reasoning in this respect. In addition, and while noting the
very significant due amount at the date of termination, the Chamber established, in line with its
longstanding jurisprudence for comparable situations, that the player terminated the contract
with just cause on 29 December 2020 as the club substantially neglected its financial obligations
towards him.
14. As a result, the Chamber established that the player is entitled to compensation, as well as to the
payment of his outstanding salaries until the date of termination of the contract.
c.
Consequences
15. Before entering into the calculation of the payable compensation, the Chamber established that
player is entitled to his outstanding remuneration.
16. In this respect, the Chamber noted that the player requested the payment of the values presented
in point I.24, but the observed that the final request was subsequently reduced to USD
788,794.72. The Chamber paid attention in this regard to the amounts that were awarded in the
other decisions (20-01388 and 20-01439).
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17. On the other hand, the Chamber observed that the Respondent did not deny it its duplica the
claimed amount of USD 788,794.72.
18. Consequently, in strict application of the principle of pacta sunt servanda, the Dispute Resolution
Chamber established that the Respondent has to pay to the Claimant, the total outstanding
amount of USD 788,794.72.
19. Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the Dispute Resolution Chamber decided to award 5% interest p.a.
over said amount as from 30 December 2020.
20. 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.
21. 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.
22. 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.
23. 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 nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
24. 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.
Consequently, the Chamber concluded that the amount of 3,939,177.15 net, serves as the basis
for the determination of the amount of compensation for breach of contract.
25. In particular, the Chamber noted that said amount is broken down as follows:
− USD 76,999 net (USD 113,665.33 / 31 x 21) for the period between 30 December 2020 to 19
January 2021 (Claimant would have been on loan to Red Star Belgrade) [based on additional
agreement]
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REF FPSD-2760
− USD 73,332.50 net (USD 189,442.33 / 31 x 12) for the rest of January 2021 (20 January – 31
January 2021)
− USD 947,211.65 net (5 months at USD 189,442.33 net each) for the rest of the season
2020/2021 (February 2021 – June 2021) and
− USD 2,841,634.00 net for the season 2021/2022.
Total: 3.939.177,15 net
26. 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.
27. Indeed, the player found new employment with Red Star Belgrade. In accordance with the
pertinent employment contract, the player was entitled to the conditions quoted in point I. 23
above. Therefore, and as already expressed (cf. I. 23 above) the Chamber concluded that the
player mitigated his damages in the total amount of USD 557,170.
28. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which
a player is entitled to an amount corresponding to three monthly salaries as additional
compensation, should the termination of the employment contract at stake be due to overdue
payables. In the case at hand, the Chamber confirmed that the contract termination took place
due to said reason, i.e. overdue payables by the club, and therefore decided that the player shall
receive additional compensation.
29. In this respect, the Chamber decided to award the amount of additional compensation of USD
568,326 i.e. 189,442.33*3.
30. The Chamber reminded the parties that, as per the last sentence of art. 17 par. 1 lit. ii) of the
Regulations, the overall compensation may never exceed the rest value of the prematurely
terminated contract. In this case, the Chamber that the amount of additional compensation was
higher than the value of the mitigation.
31. Consequently, on account of all the above-mentioned considerations and the specificities of the
case at hand, the Chamber decided that the club must pay the amount of USD 3,939,177.15 net
to the player, which was to be considered a reasonable and justified amount of compensation for
breach of contract in the present matter.
32. 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 8 June 2021 until the date of effective payment.
d.
Execution of monetary decisions
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REF FPSD-2760
33. Finally, taking into account the applicable Regulations, the Chamber / referred to art. 24bis 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.
34. 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.
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 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. 24bis
par. 2, 4, and 7 of the Regulations.
36. The club shall make full payment (including all applicable interest) to the bank account provided
by the player in the Bank Account Registration Form, which is attached to the present decision.
37. 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
38. 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.
39. 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.
40. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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REF FPSD-2760
III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Sekou Sanogo, is partially accepted.
2.
The Respondent, Ittihad FC, has to pay to the Claimant, the following amounts:
- USD 788,794.72 net as outstanding remuneration plus 5% interest p.a. as from 30
December 2020 until the date of effective payment;
- USD 3,939,177.15 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 8 June 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. 24bis of the Regulations on the Status and Transfer of Players (February 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. 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.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter 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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REF FPSD-2760
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).
CONTACT INFORMATION
Fédération Internationale de Football Association
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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