Labour Disputes
Texto da decisão
REF FPSD-6451
Decision of the
Dispute Resolution Chamber
passed on 1 September 2022
regarding an employment-related dispute concerning the player Bienvenue Shaka
BY:
Frans DE WEGER (The Netherlands), Chairperson
José Luis ANDRADE (Portugal), member
Alexandra GOMEZ BRUINEWOUD (Uruguay & Netherlands), member
CLAIMANT:
Bienvenue Shaka, Burundi
Represented by Carrero & Quintero
RESPONDENT:
Mouloudia Club Oranais, Algeria
REF FPSD-6451
I Facts
1. On 11 October 2021, the parties concluded an employment contract valid as from the date of
signature until the end of the season 2023/2024.
2. Accordingly, the player was entitled to a monthly salary of DZD (Algerian Dinar) 1,600,000.
3. Art. 8 of the contract stipulated the following:
“Sous peine de nullité, toute modification du présent contrat, doit lieu á l'etablissement d'un avenant établi
dans les même formes que le contrat initial et déposé au siège de la Ligue de Football Professionnel dans
les cinq (05) jours ayant suivi sa signature. »
Free translation into English :
“Under penalty of nullity, any modification of this contract, must take place with the establishment of an
amendment established in the same forms as the initial contract and deposited at the head office of the
Professional Football League within five (05) days having followed its signature.”
4. On 11 October 2021 and after the signature of the contract, the parties signed an amendment to the
contract which included, inter alia, the following clause:
« En cas ou les teste du joueur n'est pas concluent le joueur ne sera pas Retenue et le club sera libre de
toute engagement. »
Free translation into English :
"In case the player's test is not concluded the player will not be retained and the club will be free of any
commitment.”
5. On the same date, the club sent an invitation letter in order to assist the player to obtain an entrance
visa to enter in Algeria.
6. On 3 January 2022, the player (via his representative) sent a letter to the club, informing the latter that
it was in material breach due to the following breaches:
REF FPSD-6451
1. Failed and/or refused to process the Player’s visa and work permit
2. Failed and/or refused to pay the Player his salary and signing on fees
3. Failed to register the Player.
7. In this respect, the player granted 15 days to remedy the breaches.
8. On 19 January 2022, the player (via his representative) sent a termination letter to the club indicating
the following:
“We regrettably notice your failure to remedy the material breaches complained therein.
In view of the foregoing, our client can no longer, in good faith, expected to continue the employment
relationship with Mouloudia Club Oranais, as he has lost all trust and faith in the Club’s interest in his
services.
Take notice therefore that the Player Bienvenue Shaka hereby terminates his employment contract dated
11th October 2021 with Mouloudia Club Oranais with immediate effect and wishes the club the very best
for the future.”
9. According to the club, on 29 March 2022, it concluded a mutual termination agreement (in French:
Résiliation de contrat à l’amiable) with the following contents:
« ARTICLE 2 : Le joueur SHAKA BIENVENUE est libre de tout engagement et reconnait avoir conclu avec la
direction du MCO un accord sur les indemnités à percevoir à savoir Quatre Millions Huit Cents Mille
(4.800.000.00) Dinars representant Trois (03) mensualites. Le Mouloudia Club Oranais (MCO) et M. SHAKA
BIENVENUE déclarent qu’il n’existe aucun contentieux financier entre les deux parties.
ARTICLE 3 . La présente résiliation à l’amiable est établie pour servir et valoir ce que de droit et entre en
vigueur dès la signature par les deux parties et son enregistrement effectif par la Ligue de Football
Professionel. »
Free translation into English :
"ARTICLE 2: The player SHAKA BIENVENUE is free of any commitment and acknowledges having concluded
an agreement with the management of MCO on the compensation to be received, namely Four Million Eight
Hundred Thousand (4.800.000.00) Dinars representing Three (03) monthly payments. Mouloudia Club
Oranais (MCO) and Mr SHAKA BIENVENUE declare that there is no financial dispute between the two parties.
ARTICLE 3. The present amicable termination is established to serve and be worth what is right and comes
into force as soon as it is signed by the two parties and effectively registered by the Professional Football
League.”
10. The player informed FIFA that he subsequently concluded an employment contract with the
Burundian club, Aigle Noir, valid as from 20 January 2022 until 28 August 2022.
11. In this respect, the player was entitled to a monthly salary of BIF (Burundian Franc) 500,000, as well
as to a sign-on fee of BIF 5,000,000.
12. Following the information contained in the Transfer Matching System (TMS), the player transferred
directly from the Kenyan club, AFC Leopards, to Aigle Noir.
REF FPSD-6451
II Proceedings before FIFA
13. On 23 June 2022, the player lodged a claim before FIFA for breach of contract without just cause
and requested the payment of the following amounts:
DZD 5,813,333.33 as outstanding remuneration, corresponding to the salaries of October,
November and December 2021, as well as 19 days of January 2022.
DZD 59,840,000 as compensation, further detailed as follows:
- DZD 50,240,000, corresponding to the residual value of the contract (i.e. 31 months and 12
days with a monthly salary of DZD 1,600,000).
- DZD 9,600,000, corresponding to six monthly salaries (specificity of sports).
14. The player requested the payment of 5% interest as well as the payment of the costs of the
procedure.
15. According to the player, the club never registered him and also failed to pay his salaries.
16. The player underlined that “the registration of a player is the duty and responsibility of a club. The nonregistration is a violation of the rights of a player and any club must be responsible for that.”
17. The player argued that “has to pay compensation considering the specificity of sports for all the
horrendous treatment they gave [him]”
18. In its reply, the respondent explained that it signed a termination letter with the player (cf. point I 8
above).
19. The Respondent expressed that it is “disappointed by the bad faith” shown by the player.
20. The Respondent explained that it requested the player (via his agent) to provide all the documents in
order to register him in the digital platform of the Professional Football League, as well as in the TMS.
21. However, according to the club, “It turned out that [the player] at the time of the events, did not have
the termination of the club in which he played, namely the AFC Leopards”.
22. In this respect, the club argued that the player had a dispute before FIFA in relation to AFC Leopards.
23. In his replica, the Claimant denied having signed a termination agreement.
24. The Claimant considered that his signature in the document is forged, and attached an expertise
report from “Mr. Ronaldi Rangel Montes, computer expert from the Division of Analysis of Systems and
Information Technologies from the General Direction of Support to the Criminal Investigations of the Public
Ministry of the Bolivarian Republic of Venezuela”.
25. The Claimant underlined that he was not in Algeria at any moment, and therefore, if the parties were
in different places, then the document has to be accompanied by the email or the WhatsApp chat
through which it was sent.
REF FPSD-6451
26. Moreover, the claimant argued that in any case the club did not comply with the terms of the mutual
termination agreement.
27. The Respondent failed to provide its duplica.
28. However, after being invited to provide the original copy of the termination agreement, the club
explained that there is no physical contract, indicating that all exchange of correspondence was
made via WhatsApp or via email.
REF FPSD-6451
III Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber) analysed
whether it was competent to deal with the case at hand. In this respect, it took note that the present
matter was presented to FIFA on 23 June 2022 and submitted for decision on 1 September 2022.
Taking into account the wording of art. 34 of the June 2022 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. 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 (June 2022 edition), it is competent to deal with
the matter at stake, which concerns an employment-related dispute with an international dimension
between a Burundian player and an Algerian 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 (June 2022 edition), and considering that the
present claim was lodged on 23 June 2022, the June 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.
5.
Merits of the dispute
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
REF FPSD-6451
6.
First of all, the Chamber noted that, on 11 October 2021, the parties concluded an employment
contract valid as from the date of signature until the end of the season 2023/2024.
7.
Subsequently, the Chamber observed that the player lodged a claim for breach of contract without
just cause against the club, arguing that, after having put the club in default, he terminated the
contract on 19 January 2022.
8.
On the other hand, the Chamber acknowledged the position of the Respondent, according to which,
on 29 March 2022, it concluded a mutual termination agreement with the player.
9.
In relation to said document the Chamber observed that the player denied having signed such a
termination agreement, and argued that the attached signature is forged. The player further argued
that that it could have not been signed in person since he was at that time in a different country.
10. In view of the above, the Chamber understood that the first legal issue at stake is to determine the
legal validity of the termination agreement.
11. In this regard, the Chamber acknowledged that the club provided an electronic version of the
agreement, which is apparently signed by both parties (cf point I 9 above).
12. In view of the above, and following the standard approach of the FIFA Football Tribunal for similar
situations, the club was invited by the administration of the Football Tribunal to send the original
termination agreement by post or courier.
13. In reply to said request, the club explained that all the exchange of correspondence was made via
email or Whatsapp.
14. Given this last argument of the Club, the Chamber wished to underlined that, although signatures
by exchange of electronic correspondence are common and acceptable, the party claiming their
validity should have at least provided evidence of the exchange of correspondence (such as a copy
of the relevant email files, or a screenshot from a WhatsApp conversation, or any other type of
metadata). Yet, the club only provided a copy of a scanned paper in PDF format, without any
transmission report that would indicate the circumstances of its signature.
15. As a result, the Chamber considered that, due to its failure to provide a complete set of evidence
surrounding the signature of the termination agreement, it had legitimate reasons to have doubts
about the authenticity of said document. As a result, the Chamber considered that it could not take
said agreement as a valid one.
16. The foregoing been established, the Chamber turned to the circumstances that led the player to
terminate the contract on 19 January 2022. In particular, the Chamber noted that, de facto, it appears
undisputed that the player was never registered and that the contract was never executed.
REF FPSD-6451
17. In this respect, first of all, the members of the Chamber considered important to point out, as it has
been previously sustained by the DRC, that among a player’s fundamental rights under an
employment contract, is not only his right to a timely payment of his remuneration, but also his right
to access training and to be given the possibility to compete with his fellow team mates in the team’s
official matches.
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. The Chamber observed that the financial obligations deemed as outstanding in the present case
correspond to the player’s salaries from October 2021 until January 2022 (i.e. 1,600,000*4 = DZD
6,400,000).
20. 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 claimed as
outstanding under the contract, in total DZD 6,400,000, as detailed above.
21. 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 the due dates until the date of effective payment.
22. 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.
23. 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.
24. 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.
25. As a consequence, the Chamber determined that the amount of compensation payable by the
Respondent to the Claimant 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
REF FPSD-6451
enumeration of criteria to be taken into consideration when calculating the amount of compensation
payable.
26. 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 DZD 46,400,000 (i.e. 29*1,600,000) serves
as the basis for the determination of the amount of compensation for breach of contract.
27. 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.
28. Indeed, the player found new employment with Aigle Noir. In accordance with the pertinent
employment contract, the player was entitled to a monthly salary of BIF (Burundian Franc) 500,000,
as well as to a sign- on fee of BIF 5,000,000. Accordingly, the Chamber estimated that the total value
of said contract corresponds to 7*500,000 + 5,000,000 = BIF 8,500,000, which is equivalent to approx.
DZD 600,000 or USD 4,100.
29. Therefore, the Chamber concluded that the player mitigated his damages in the total amount of USD
DZD 600,000.
30. 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.
31. In this respect, the Chamber decided to award the amount of additional compensation of DZD
4,800,000, i.e. 1,600,000*3 as the monthly remuneration of the player.
32. 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.
33. 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 DZD 46,400,000 to the player
(i.e. DZD 46,400,000 minus DZD 6,00,000 plus DZD 4,800,000, limited to a maximum of DZD
46,400,000), which was to be considered a reasonable and justified amount of compensation for
breach of contract in the present matter.
REF FPSD-6451
34. Lastly, taking into consideration the player’s request as well as the constant practice of the Chamber
in this regard, the latter decided to award the player interest on said compensation at the rate of 5%
p.a. as of the date of claim until the date of effective payment.
iii. Compliance with monetary decisions
35. 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.
36. 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.
37. Therefore, bearing in mind the above, the Chamber decided that the club must pay the full amount
due (including all applicable interest) to the player within 45 days of notification of the decision,
failing which, at the request of the creditor, a ban from registering any new players, either nationally
or internationally, for the maximum duration of three entire and consecutive registration periods
shall become immediately effective on the club in accordance with art. 24 par. 2, 4, and 7 of the
Regulations.
38. The club shall make full payment (including all applicable interest) to the bank account provided by
the player in the Bank Account Registration Form.
39. 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. 8of the
Regulations.
d. Costs
40. 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.
41. 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.
42. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
REF FPSD-6451
IV Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Bienvenue Shaka, is partially accepted.
2.
The Respondent, MC Oran, has to pay to the Claimant, the following amounts:
-
DZD 6,400,000 as outstanding remuneration plus interest as follows:
5% interest over the amount of DZD 1,600,00 p.a. as from 1 November 2021 until the date of effective payment;
5% interest over the amount of DZD 1,600,00 p.a. as from 1 December 2021 until the date of effective payment;
5% interest over the amount of DZD 1,600,00 p.a. as from 1 January 2022 until the date of effective payment;
5% interest over the amount of DZD 1,600,00 p.a. as from 1 February 2022 until the date of effective payment;
-
DZD 46,400,000 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 23 June 2022 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, 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.
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
REF FPSD-6451
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).
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