Labour Disputes
Texto da decisão
REF FPSD-5198
Decision of the
Dispute Resolution Chamber
passed on 18 May 2022
regarding an employment-related dispute concerning the player Alpha Oumar Sow
BY:
Johan van Gaalen (South Africa)
CLAIMANT:
Alpha Oumar Sow, Guinea
Represented by Probst Partner
RESPONDENT:
Al Nahdha Sports Club, Oman
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REF FPSD-5198
I.
Facts of the case
1.
On 1 September 2021, the Guinean player Alpha Oumar Sow (hereinafter the Claimant or the
player) and the Omani club Al Nahdha Sports Club (hereinafter the Respondent or the club)
concluded employment agreement (hereinafter the Employment Agreement), valid as from
1 September 2021 until 30 May 2022.
2.
In Clause 1 of the Employment Agreement, the Claimant and the Respondent (jointly referred to
as the Parties) agreed upon, inter alia, the following terms:
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a sign-on bonus of USD 3,000;
a monthly salary of USD 3,000;
a performance bonus of Omani Rial (‘OMR’) 40 “in case of winning a match”;
a flight ticket (return);
an accommodation during “the duration of the contract”.
3.
In Clause 18 of the Employment Agreement, the Parties stipulated that they have “right to
terminate the contract after paying one month salary for the other party.”
4.
In October 2021, the Respondent informed the Claimant that it will end the contractual
relationship.
5.
At the end of October 2022, the Claimant signed the New Employment Agreement with Bahla
Club, valid as from 29 October 2021 until 30 May 2022.
6.
In accordance with Clause 2 of the New Employment Contract, the Claimant was entitled to a
monthly salary of ORM 500 (i.e. USD 1,295), whereas the total value of the contract amounted to
USD 9,065.
7.
On 16 December 2021, the Claimant and Bahla Club terminated the New Employment Agreement.
At this occasion, the Claimant and Bahla Club signed an agreement indicating that all financial
dues have been settled between them.
8.
After the said termination with Bahla Club, the Claimant did not sign any new contract.
II. Proceedings before FIFA
9.
On 18 February 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
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a. Position of the Claimant
10. The request for relief of the Claimant was the following:
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USD 9,000, corresponding to outstanding salaries of September 2021 until October 2021
and the sign-on fee, plus 5% interest p.a. as from 1 October 2021 until the date of the
effective payment;
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USD 21,000, corresponding to the compensation for the breach of contract without just
cause, plus 5 % interest p.a. as from 15 January 2022 until the date of the effective
payment;
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To impose all procedural costs as well as the legal costs on the Respondent.
11. The Claimant argued that he never received a single payment from the Respondent and that based
on the WhatsApp messages on file, he asked “the Sports director several times when he would get
his money and wanted the contract to be honoured.” (free translation from German)
12. The Claimant further pointed out that in case he was never duly registered with the Respondent,
the latter terminated the Employment Agreement without just cause.
13. Subsidiarily, the Claimant believed that, in any event, the Respondent terminated the
Employment Agreement without just cause in accordance with art. 14 of the Regulations as more
than two monthly salaries remained outstanding.
14. In view of the above, the Claimant argued that it is entitled to the outstanding payments as well
as the compensation in the amount of the residual value of the contract (art. 17 of the
Regulations).
15. As to the compensation, the Claimant was of the opinion that the Clause 18 of the Employment
Agreement shall not apply in the particular case as it contradicts the art. 13 of the Regulations.
16. In view of the above, the Claimant argued that the compensation shall be calculated as a residual
value of the contract. In this respect, the Claimant argued that he received from “FC Bahla during
the contract period only USD 350. This leaves a residual amount of USD 20,650, which the
Respondent has to reimburse. In addition, there would be a flight ticket as well as the costs for the
flat, but these cannot be proven in terms of amount.” (free translation from German)
b. Position of the Respondent
17. The Respondent rejected the claim of the Claimant as it argued that it “was surprised by the
player's escape and his absence from the main training in the first team from 10/10/2021 until
now.”
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18. Furthermore, the Respondent alleged that it “learned that the player had contracted with Bahla
Club with a contract without the official approval of Al-Nahda Club, meaning that he had
contracted with two different clubs for the same period, which is in violation of the FIFA laws
regulating this matter.”
19. Finally, the Respondent alleged that the “player received some amounts as part of his salaries
during his regular training and before his escape”.
c. Final Comments of the Claimant
20.
The Claimant was requested to comment on the alleged payments.
21.
In this respect, the Claimant argued that he “did receive 50 Rials from the Club which was pocket
money to buy food. As the Player did not receive any salary from the Club throughout the month
of September, he asked the Club to give him some money to buy food.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as the
Single Judge) analysed whether he was competent to deal with the case at hand. In this respect,
he took note that the present matter was presented to FIFA on 18 February 2022 and submitted
for decision on 18 May 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.
23. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and observed that
in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status
and Transfer of Players (March 2022 edition), he is competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between a
Guinean player and an Omani club.
24. Finally, the Single Judge analysed which regulations should be applicable as to the substance of
the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Player (March 2022 edition) and considering that the
present claim was lodged on 18 February 2022, the August 2021 edition of said regulations
(hereinafter the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
25. The Single Judge 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
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shall carry the respective burden of proof. Likewise, the Single Judge stressed the wording of
art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
26. His competence and the applicable regulations having been established, the Single Judge entered
into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However, the
Single Judge emphasised 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.
i. Main legal discussion and considerations
27. The foregoing having been established, the Single Judge moved to the substance of the matter
and took note of the fact that the dispute concerns termination of the Employment Agreement.
28. In this context, the Single Judge acknowledged that whereas the Parties did not dispute the
validity of the employment contract, the Claimant argued that the Respondent failed to register
him within the relevant period.
29. At the same time, the Single Judge recalled Respondent’s argumentation that it “was surprised by
the player's escape and his absence from the main training in the first team from 10/10/2021 until
now”.
30. First of all, the Single Judge acknowledged that based on the information in TMS, no registration
of the Claimant with the Respondent took place. In particular, the Single Judge noted that
on 2 October 2021, the Respondent cancelled the transfer instruction in TMS.
31. In this respect, the Single Judge recalled the jurisprudence of the DRC that the registration
procedure in connection with the international transfer of a player is of the sole responsibility of
a club and upon which a player has no influence. Furthermore, the Single Judge stressed that as
the club is supposedly interested in acquiring the rights of the player and in benefiting from his
services, it is also expected to act accordingly and execute the administrative formalities in view
of obtaining, for instance, the player’s ITC and his subsequent registration with the engaging FA.
32. In view of the above, in particular taking into account that the Respondent never duly registered
the Claimant nor provided for any proof that it duly made a payment of his salaries, the Single
Judge concluded that in light of the principle of ex turpi causa non oritur action, he cannot not
uphold the above-mentioned argumentation regarding the alleged “escape of the player”.
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33. Furthermore, the Single Judge pointed to the fact that the Respondent did not dispute to have
received the correspondence of the Claimant, requesting that the Respondent shall honour the
Employment Agreement.
34. Based on the above, the Single Judge concluded that the Respondent terminated the contractual
relationship with the Claimant without just cause as per the end of October 2021.
ii. Consequences
35. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
36. The Single Judge observed that it remained, in principle, undisputed by the Parties that the sellon fee as well as the salaries of September and October 2021 remained outstanding,
i.e. USD 9,000.
37. Nonetheless, the Single Judge recalled that during the proceeding before FIFA, the Claimant
acknowledged to have received OMR 50 (i.e. USD 129.5) from the Respondent.
38. In view of thew above, the Single Judge concluded that the amount of USD 8,870.5 remained
outstanding.
39. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the
Single Judge decided that the Respondent is liable to pay to the Claimant the amounts which were
outstanding under the contract at the moment of the termination, i.e. USD 8,870.5.
40. In addition, taking into consideration the Claimant’s request as well as the constant practice of
the Single Judge in this regard, the latter decided to award the Claimant interest at the rate of 5%
p.a. as from 18 February 2022 until the date of the effective payment.
41. Having stated the above, the Single Judge 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 Single 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.
42. In application of the relevant provision, the Single Judge held that he 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.
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43. In this regard, the Single Judge took note of the wording of Clause 18 of the Employment
Agreement, which established that the Parties have the “right to terminate the contract after
paying one month salary for the other party”.
44. After analysing the content of the aforementioned clause, the Single Judge concluded that it did
not fulfil the criteria of reciprocity and proportionality, in line with the Single Judge’s longstanding
jurisprudence, and therefore could not be taken into account for establishing the amount of
compensation payable to the Claimant. In particular, the Single Judge noted that the respective
clause is not proportionate.
45. As a consequence, the Single Judge 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 Single Judge recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
46. Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded with
the calculation of the monies payable to the player under the terms of the contract from the date
of its unilateral termination until its end date. Consequently, the Single Judge concluded that the
amount of USD 21,000 (i.e. the salaries of seven months as from November 2021 until May 2022)
serves as the basis for the determination of the amount of compensation for breach of contract.
47. In continuation, the Single Judge verified as to 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 DRC 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.
48. Indeed, the player found employment with Bahla Club. In accordance with the pertinent
employment contract, the player was entitled to approximately USD 1,295 per month. Therefore,
the Single Judge concluded that the player mitigated his damages in the total amount of
USD 9,065 (USD 1,295 x 7 months).
49. Consequently, on account of all of the above-mentioned considerations and the specificities of
the case at hand, the Single Judge decided that the club must pay the amount of USD 11,935 to
the player (i.e. USD 21,000 minus USD 9,065), which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
50. Lastly, taking into consideration the player’s request as well as the constant practice of the Single
Judge in this regard, the latter decided to award the player interest on said compensation at the
rate of 5% p.a. as of 18 February 2022 until the date of effective payment.
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iii. Compliance with monetary decisions
51. Finally, taking into account the applicable Regulations, the Single Judge 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.
52. In this regard, the Single Judge 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.
53. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of notification of
the decision, failing which, at the request of the Claimant, a ban from registering any new players,
either nationally or internationally, for the maximum duration of three entire and consecutive
registration periods shall become immediately effective on the Respondent in accordance with
art. 24 par. 2, 4, and 7 of the Regulations.
54. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form, which is attached to the present
decision.
55. The Single Judge recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of the
Regulations.
d. Costs
56. The Single Judge 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, he decided that no procedural costs were to be imposed on the parties.
57. For the sake of completeness, the Single Judge recalled the contents of art. 25 par. 8 of the
Procedural Rules, and decided that no procedural compensation shall be awarded in these
proceedings.
58. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Alpha Oumar Sow, is partially accepted.
2.
The Respondent, Al Nahdha sports Club, has to pay to the Claimant, the following amount(s):
- USD 8,870.5 as outstanding remuneration plus 5% interest p.a. as from 18 February 2022 until
the date of effective payment;
- USD 11,935 as compensation for breach of contract without just cause plus 5% interest p.a. as
from 18 February 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.
2.
The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall be
of up to three entire and consecutive registration periods.
The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in
the event that full payment (including all applicable interest) is still not made by the end of
the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance with art.
24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 17 of the Procedural Rules).
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