Labour Disputes
Texto da decisão
REF FPSD-3300
Decision of the
Dispute Resolution Chamber
passed on 9 November 2021
regarding an employment-related dispute concerning the player Sadam Sulley
BY:
Philippe Diallo (France), DRC Judge
CLAIMANT:
Sadam Sulley, Ghana
RESPONDENT:
FK Senica, Slovakia
REF FPSD-3300
I.
Facts
1. Initially, the parties concluded an employment contract valid as from 17 July 2019 until 31 June
2021.
2. Following a procedure before FIFA (20-01055) for outstanding remuneration, on 22 October 2020,
the DRC decided the following:
“2. The Respondent, FK Senica, has to pay to the Claimant [Sadam Sulley], the following amount:
EUR 41,023 net as outstanding remuneration plus 5% interest p.a. (…)”
3. On 20 January 2021, the Claimant lodged a new claim before FIFA for outstanding remuneration
and breach of contract without just cause (FPSD-1827).
4. On 9 April 2021, the legal representative of the player sent a “withdraw the claim in its entirety due
to the fact that the Claimant and the Respondent have reached settlement agreement in the
present matter
5. Under the aforementioned circumstances, on 30 March 2021, the Claimant and the Respondent
signed a “Debt recognition and debt repayment in installments agreement” with the following
contents:
“Due to the Debtor's failure to pay the obligations under the Agreement properly and in a timely
manner, the Creditor filed a claim to the FIFA Disputes Chamber and requested the Debtor be
ordered to pay overdue salary in the amount of EUR 41,023.04 along with 5% p.a. default interest
The FIFA Dispute Resolution Chamber by decision dated 02.12.2020, ref.no .: 20-01055, accepted
the Creditor's claim and ordered the Debtor to pay the Creditor within 45 days from the date of
notification of the decision:
• Principal in the amount of 41,023 EUR / Net together with default interest of 5% p.a. :
o from the amount of EUR 5,023.04 from 01.06.2020 until payment;
o from the amount of EUR 6,000.00 from 01.06.2020 until payment;
o from the amount of 6,000.00 EUR from 01.03.2020 until payment;
o from the amount of 6,000.00 EUR from 01.04.2020 until payment;
o from the amount of EUR 6,000.00 from 01.05.2020 until payment;
o from the amount of EUR 6,000.00 from 01.06.2020 until payment;
o from the amount of 6,000.00 EUR from 01.07.2020 until payment;
(hereinafter referred to as “Debt 1”)
(…)
Debtor for amounts in excess of Debt 1 and in the proceedings, which are being conducted under ref.
no.: FPSD-1827, requests payment of the following claims from the Debtor:
• Principal in the amount of EUR 66,818.96 / Net together with 5% p.a. default interest:
o from the amount of EUR 6,000.00 from 01.08.2020 until payment;
o from the amount of EUR 6,500.00 from 01.09.2020 until payment;
o from the amount of EUR 54,318.96 from 01.07.2020 until payment;
all derived from the follwing title (reason) and in amounts as follows:
• 12.500,00 EUR / Net, as unpaid salary for the months of June and July 2020;
REF FPSD-3300
• 1.332,00 EUR / Net, as the outstanding amount for the creditor's air ticket costs under the
Employment agreement;
• 4.050,00 EUR / Net, as compensation for damages incurred by the creditor for accommodation from
the date of termination of the Employment agreement until the date of concluding a new
employment contract in the new club;
• 19.500,00 EUR / Net, as additional compensation for breach of contract without just cause in
connection with non-payment of salary for at least two months in accordance with the FIFA RSTP;
• 29.436,96 EUR / Net, as reduced compensation for breach of contract without just cause in
connection with non-payment of wages for at least two months in accordance with the FIFA RSTP.
(hereinafter referred to as "Debt 2")
1.6 The Debtor pursuant to the provisions of § 558 of the Civil Code as regards the reason for title as
well as the amount pursuant to this provision Agreement, acknowledges the Debt 1 (ie principal
41.023,00 EUR / Net with default interest in the amount of 1.823,70 EUR calculated as of 30.03.2021,
ie. a total of EUR 42.846,70 / Net) and Debt 2 (ie a principal of EUR 66.818,96 / Net with default
interest of EUR 2.409,01 / Net calculated on 30.03.2021, ie a total of EUR 69.227,97), and at the
same time it undertakes to pay it in installments as follows:
• first installment of EUR 21.423,35, no later than 31.03.2021;
• second installment of EUR 21.423,35, no later than 15.06.2021;
• third installment of EUR 11.875,00, no later than 15.07.2021;
• fourth installment of EUR 11.875,00, no later than 15.08.2021;
• fifth installment of EUR 11.875,00, no later than 15.09.2021;
• sixth installment of EUR 11.875,00, no later than 15.10.2021;
• seventh installment of EUR 21.727,97, no later than 15.11.202
1.8 In the event that the Debtor is in default with the payment of even one of the installments under
para. 1.6 above, the Debtor, in accordance with the provisions of § 565 of the Civil Code, loses the
right of paying Debt 1 and Debt 2 in installments and the Creditor is entitled to request payment of
the entire Debt 1 and Debt 2 in the remaining amount on the first day of default in payment of even
one of the installments.
6. On 21 June 2021, the player via his lawyer sent a default notice indicating the following:
“pursuant to the Acknowledgment of Debt and Agreement on Payment in Installments dated 30
March 2021 (“Agreement”), your club was obliged to make a payment of the second installment on
or before 15th June 2021.
Since your club did not pay due installment in amount or time required, we hereby notify your club
that pursuant to the provision of clause 1.8 of the Agreement, your club has forfeited its right to
pay the acknowledged debt in installments and as a consequence the whole remaining debt is now
due in full. Based on stated facts, we hereby inform you that your club is obliged to pay the overall
overdue sum in amount of 90.651,32 EUR/NET to the bank account of the player’s attorney, no
later than 1 business day after delivery of this notice.”
(…)
7. On 11 August 2021, Sadam Sulley lodged a claim before FIFA for outstanding remuneration and
requested the payment of EUR 69,227.97 as outstanding remuneration, plus 5% interest p.a. as
from 16 June 2021.
REF FPSD-3300
8. According to the Claimant, Pursuant to Acknowledgement of the Debt Agreement, the Respondent
was obliged to pay 112.074,67 EUR, from which the Respondent paid only 42.846,70 EUR up to
date.
9. In its reply to the case, the Respondent denied the validity of the acknowledgement of debt
agreement.
10. According to the Respondent, there are no legal grounds for the initial claim for compensation for
termination of employment contract without just cause and therefore any other claims have to be
considered null and void.
11. The Respondent argued that the contract with the player terminated on 25 May 2020, and
consequently there is no legal basis to pay him any compensation for breach of contract.
12. According to the Respondent “the speculative nature of partial claims is no surprise to us as we
have very unpleasant experience with Claimant´s lawyer. He used to represent our club during years
2018, 2019 and there are several very problematic and questionable claims arising from this era
which are somehow related to this lawyer. He does not even hesitate to represent several entities
against our club and completely ignores the evident conflict of interest on his side.”
13. In sum, the club argued that “the Contract was in fact automatically terminated two months prior
to the termination letter being sent to the Respondent. If there are no legal grounds for the base of
the claim, the Acknowledgment of Debt Agreement has zero relevance in this case and any rights
arising of the so called unlawful termination of employment agreement have to be considered null
and void.
14. In his replica, the Claimant explained that his claim in the matter FPSD – 1827, which has been
withdrawn, only due to signing of the Acknowledgement of Debt.
15. In particular, the Claimant argued that in the pertinent Acknowledgement of Debt t, the
Respondent has clearly recognized each one of the parts of damage (compensation) caused and its
existence, title (reason) and value and has agreed to pay the compensation in installments.
16. Therefore, the Claimant considered that any argument of the Respondent regarding the merits of
damages (compensation) shall be rejected due to the fact that the Respondent has validly
recognized its existence, title and sum.
17. According to the Claimant, in relation to the conditions related to the acknowledgement of debt, it
is “is not going to entertain the Respondent’s wild ideas and inuendo, simply because there are no
facts and evidence presented, and the Acknowledgement of Debt is perfectly valid agreement from
which the Respondent has benefitted the most.”
18. On the other hand, the Claimant argued that he did not gain much benefit from signing the
Acknowledgement of Debt, because he received only 50 % of his overdue salary within 31 March
2021,
19. As final comments, the Respondent argued that the matter shall be considered as res iudicata since
it was already decided in FPSD-1827.
REF FPSD-3300
20. The Respondent argued that “the legal representative of the Claimant took unfair advantage of the
Respondent´s situation and mixed lawful and unlawful claims while pushing the Respondent to sign
unlawful agreement in this regard. The Claimant described the situation preceding the closing of the
“Acknowledgment of Debt Agreement” only partially - he ignored/twisted the fact, that most of the
claims included in this document were based on unlawful grounds as described by the Respondent
while referring to Contract conditions leading to automatic termination of the Contract.”
21. The Respondent explained that it was “blackmailed” to acknowledge the debt 2.
22. The Respondent further noted that the representative of the player is a member of the DRC and
therefore objected the possibility of bias in a possible decision.
REF FPSD-3300
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (DRC) Judge analysed whether he was competent to
deal with the case at hand. Taking into account the wording of art. 21 of the October 2021 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.
2. Subsequently, the
DRC
Judge referred to art.
3
par.
1 of the Procedural
Rules
and emphasised 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, the Dispute Resolution Chamber
is competent to deal with matters which concern employment-related disputes with an
international dimension between players and clubs.
3. In continuation, the DRC Judge analysed which edition of the Regulations of the Status and Transfer
of Players should be applicable to the present matter. In this respect, the DRC Judge confirmed that
in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players,
and considering the date when the claim was lodged, the August 2021 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.
4. With the above having been established, the DRC Judge entered into the substance of the matter.
In doing so, it started to acknowledge the facts of the case as well as the documents contained in
the file. However, the Judge emphasized that in the following considerations he will refer only to
facts, arguments and documentary evidence which it considered pertinent for the assessment of
the matter at hand.
5. In this respect, the DRC Judge noted that, Initially, the parties concluded an employment contract
valid as from 17 July 2019 until 31 June 2021, which was also the basis of previous dispute arisen
between the parties.
6. The DRC Judge also noted that, according to the Claimant, on 30 March 2021, the parties
concluded an agreement stipulating the conditions quoted in point I. 5 above. The DRC Judge
observed settlement agreement apparently relates to a previous DRC Decision, (the so-called “Debt
1”) as well as a claim for breach of contract without just cause (the so-called “Debt 2). The Judge
also observed that it appears that the Debt 2 is related to the payment of compensation for breach
of contract without just cause, which the parties agreed to pay before any decision of the DRC.
7. In this regard, the DRC Judge took note that the Claimant lodged a claim before FIFA for
outstanding remuneration and requested the payment of EUR 69,227.97 as outstanding
remuneration arisen from the Acknowledgement of the Debt Agreement. The Claimant specified
in this regard that, following said agreement, the Respondent was obliged to pay 112.074,67 EUR,
from which the Respondent paid only 42.846,70 EUR up to date.
8. First and foremost, in relation to said agreement, the DRC Judge underlined that the matter cannot
be consider as res iudicata due to the previous claim FPSD-1827, since the present claim arises from
a mutual settlement agreement that terminated the proceedings under ref. no. FPSD-1827, and it
does not refer to the circumstances related to the termination of the previous employment contract.
REF FPSD-3300
9. On the other hand, the DRC Judge took note of the Respondent’s position, which fundamentally
denied the validity of said agreement, as it considered that it was “blackmailed” in order to sign it.
10. In view of the dissent between the parties, the DRC Judge understood that the main legal issue at
stake is to determine the validity of the aforementioned agreement.
11. At this stage, the DRC Judge considered pertinent to recall the contents of art. 12 of the Procedural
Rules, according to which “3. Any party claiming a right on the basis of an alleged fact shall carry
the burden of proof. During the proceedings, the parties shall submit all relevant facts and evidence
of which they are aware at that time, or of which they should have been aware if they had exercised
due care” and “7. Evidence shall be considered with free discretion, taking into account the conduct
of the parties during the proceedings, especially a failure to comply with a personal summons, a
refusal to answer questions and the withholding of requested evidence.”
12. In this respect, the DRC Judge reviewed the documentation and evidence gathered during the
course of the investigation, and concluded that the Respondent did not provide any evidence as to
the existence of the alleged “blackmail”.
13. The foregoing being established, and in accordance with the principle of the free will of the parties,
the DRC Judge understood that he shall not examine the reasons behind the conclusion of this
agreement, and the full debt acknowledgement agreement shall be deemed as valid, and therefore
the Debt 1 and the Debt 2 are due in full.
14. In this regard, the DRC Judge also noted that the Respondent did not context the amount claimed
by the player.
15. Consequently, in strict application of the principle of pacta sunt servanda, the DRC Judge
established that the Respondent has to pay to the Claimant, the total outstanding amount of EUR
69,227.97 as agreed in the settlement agreement.
16. Moreover, taking into account the request of the Claimant as well as the longstanding jurisprudence
in this regard, the DRC Judge decided to award 5% interest p.a. over said amount as from 16 June
2021 (i.e. when the second instalment was due)
17. Furthermore, taking into account the previous considerations, the DRC 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.
18. 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.
19. Therefore, bearing in mind the above, the DRC Judge decided that, in the event that the
Respondent does not pay the amounts 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
REF FPSD-3300
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.
20. 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 amounts, in accordance with art. 24bis par. 3 of
the Regulations.
REF FPSD-3300
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Sadam Sulley, is accepted.
2.
The Respondent, FK Senica, has to pay to the Claimant, the outstanding amount of EUR
69,227.97, plus 5% interest p.a. as from 16 June 2021 until the date of effective payment;
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
4.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 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.
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.
5.
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.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-3300
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).
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