Labour Disputes
Texto da decisão
REF FPSD-7089
Decision of the
Dispute Resolution Chamber
passed on 26 October 2022
regarding an employment-related dispute concerning the player Tinga Kofi
Tei
BY:
Alejandro Atilio Taraborrelli (Argentina)
CLAIMANT:
Tinga Kofi Tei, Ghana
Represented by Arsen Selmanaj
RESPONDENT:
Klubi Futbollit Terbuni, Albania
REF FPSD-7089
I. Facts of the case
1.
On 26 August 2021, the Ghanaian player, Tinga Kofi Tei (hereinafter: the Claimant) and the
Albanian club, Klubi Futbollit Terbuni (hereinafter: the Respondent) concluded an
employment contract (hereinafter: the first contract) valid for a period of one year.
2.
Pursuant to article iii (i) of the first contract, the Claimant was entitled to a monthly salary
of USD 260 payable on the 21st day of the following month.
3.
Allegedly on 1 September 2021, the Clamant and the Respondent concluded a second
employment contract (hereinafter: the second contract) valid from 1 September 2021 until
31 August 2022.
4.
Pursuant to article iii (i) of the second contract, the Claimant was entitled to a monthly
salary of EUR 1,000 payable on the 21st day of the following month.
5.
According to the Claimant, the Respondent verbally agreed to pay a flight ticket from Ghana
to Albania in the amount of EUR 1,000.
6.
On 27 July 2022, the Claimant sent a notice of default to the Respondent, to comply with
payment of his outstanding salaries in the total amount of EUR 10,190.90, granting it a
deadline of 15 days, however to no avail. The outstanding salaries is specified below:
7.
Season
Amount to be paid Amount paid by the
by the club
club
Amount the club owes to
the player
2021/2022
€ 14,000.00
€ 10,190.90
€ 3,809.10
On 12 August 2022, the Claimant sent a termination notice to the Respondent, terminating
the employment relationship.
II. Proceedings before FIFA
8.
On 16 August 2022, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
9.
According to the Claimant, the Respondent failed to comply with the payment of the
amount as detailed in his default notice.
REF FPSD-7089
10. The requests for relief of the Claimant, were the following:
I.
II.
III.
IV.
V.
The claim filed by Claimant before the FIFA DRC against Respondent is upheld.
That the Respondent is condemned to pay Claimant outstanding remuneration and
salaries of EUR 10,390.90 plus 5% interest p.a. from the due dates until the date of
full and effective payment.
FIFA DRC is requested to affirm that the Player had a just cause to unilaterally
terminate the Employment Contract.
Respondent shall bear any and all the possible costs of this procedure.
Respondent shall bear the costs of player defense in the amount of EUR 2,000.
b. Position of the Respondent
11. Notwithstanding the fact that the Respondent was invited to provide its position to the
Claimant’s claim it failed to do so.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as 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 16 August 2022
and submitted for decision on 26 October 2022. Taking into account the wording of art. 34
of the October 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 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 October 2022 edition), the Single Judge
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Ghanaian player and an Albanian club.
3.
Subsequently, 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 Players (October 2022 edition) and
considering that the present claim was lodged on 16 August 2022, the July 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
REF FPSD-7089
b. Burden of proof
4.
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 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
5.
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
6.
The foregoing having been established, the Single Judge moved to the substance of the
matter and took note of the fact that the main issue to be determined is whether the
Claimant and Respondent had validly concluded a second contract and whether the
Claimant is entitled to the remuneration stipulated in both the first and second contract.
7.
The Single Judge noted that the Claimant argued that he concluded two employment
contracts with the Respondent, entitling him to the total remuneration agreed to in the
respective contracts.
8.
In this context, the Single Judge acknowledged that his task was to determine whether the
Claimant and Respondent validly concluded a second contract and whether the amounts
claimed by the Claimant relating to both the first and second contract were to be paid by
the Respondent.
9.
Subsequently, the Single Judge noted that – after having been provided with the claim of
the Claimant – the Respondent failed to present its response. By not presenting its position
to the claim, the Single Judge was of the opinion that the Respondent renounced its right
of defence and, thus, accepted the allegations of the Claimant.
10. Furthermore, as a consequence of the aforementioned consideration, the Single Judge
expressed that he shall take a decision upon the basis of the documentation already on
file; in other words, upon the statements and documents presented by the Claimant.
REF FPSD-7089
11. In this respect the Single Judge noted that the second contract submitted by the Claimant
is an unsigned document (not signed by the Claimant nor the Respondent). Moreover, in
accordance with the information available in TMS, the Single Judge observed that the
employment contract contained in TMS is only the first contract and that no record of the
second contract was uploaded in TMS.
12. The Single Judge recalled the content of 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. With this in mind, the Single Judge deemed that it was up to the Claimant
to prove that the second contract was validly concluded between the parties.
12. In this context, the Single Judge turned his attention to the documentation brought forward
by the Claimant and acknowledged that the latter failed to provide sufficient and
corroborating evidence on the basis of which it can be determined that the second contract
was indeed validly concluded between the Claimant and Respondent, hence the Single
Judge decided that the second contract shall not be taken into account in assessment of
this matter.
13. The Single Judge therefore established that the Respondent’s financial obligations arose
from the terms and conditions agreed to in the first contract concluded on 26 August 2021
and in this regard, remarked that the total remuneration due to the Claimant for the period
26 August 2021 until 26 August 2022 based on a monthly salary of USD 260 amounts to
approximately USD 3,120.
14. The Single Judge took note that the Claimant in his claim indicated that the Respondent
paid him a total amount of EUR 3,809.10 (approximately USD 3,698.78), hence on the basis
of the aforesaid, the Single Judge indicated that the Respondent fully complied with its
contractual financial obligations as per the first contract.
15. Based on the foregoing, the Single Judge concluded that the Claimant had not provided a
valid justification for the premature termination of the employment contract on 12 August
2022, albeit the first contract was due to expire by 26 August 2022. Furthermore, the
Claimant was duly compensated as per the first contract, hence there is no entitlement to
any further compensation in the present matter.
16. Consequently, the Single Judge decided to reject the claim of the Claimant.
d. Costs
17. 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, the Single Judge decided that no procedural costs were to be
imposed on the parties.
REF FPSD-7089
18. Likewise, and 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.
19. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief
made by any of the parties.
REF FPSD-7089
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Tinga Kofi Tei, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-7089
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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