Labour Disputes
Texto da decisão
REF FPSD-6677
Decision of the
Dispute Resolution Chamber
passed on 25 January 2023
regarding an employment-related dispute concerning
the player AMED TOURE
BY:
Dana Al-Noaimi (Qatar), Single Judge of the DRC
CLAIMANT:
Amed Toure, Ivory Coast
Represented by Mawuli Kwaku Avorgah
RESPONDENT:
Medeama SC, Ghana
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I. Facts of the case
1.
-
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On 5 January 2021, the parties concluded an employment contract, along with a
supplementary agreement, both of which -jointly- reflect the conditions of the
employment relationship of the parties (hereinafter jointly referred to as: the contract),
valid as from the date of its signature until 5 January 2023. Under the contract, the club
undertook to pay to the player, inter alia, the following remuneration:
GHS 116,000 as sign-on fee, payable in 2 equal instalments as follows:
-
GHS 58,000 for the year 2021;
-
GHS 58,000 for the year 2022;
GHS 5,800 as monthly salary.
2.
On 25 May 2022, the club informed the player that, due to the disciplinary proceedings
initiated against him, he would be paid half of his salary during the period where he is
under “suspension”.
3.
By means of his letter dated 15 June 2022, the player put the club in default of payment
in the amount of GHS 2,900 corresponding to the salary of May 2022, thereby granting
the club a deadline until 22 June 2022 to remedy the default.
4.
Thereafter, on 22 June 2022, the player sent a new default notice to the club, requesting
the latter to proceed with the payment of the unpaid part of the salary of May 2022 (half)
and the second instalment of the sign-on fee, granting the club a 12 days’ deadline to
remedy the default.
II. Proceedings before FIFA
a. Position of the Claimant
5.
On 10 July 2022, the player lodged a claim against the club in front of FIFA, requesting to
be awarded outstanding remuneration and compensation for breach of contract in the
amount of GHS 142,100 (approx. USD 14,000), broken down by the Claimant as follows
(no default interest requested):
Outstanding remuneration: GHS 60,900
-
GHS 58,000 as second instalment of the sign-on fee;
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GHS 2,900 corresponding to half of the salary of May 2022
Compensation for breach of contract: GHS 81,200
-
GHS 46,400 as compensation for breach of contract, corresponding to the alleged
residual value of the contract (salaries allegedly payable between June 2022 and
January 2023, i.e. 8 monthly salaries);
-
GHS 34,800 as additional compensation, composed of 6 salaries.
6.
In his claim, the player argued that despite having concluded a valid employment contract
and having respected his contractual obligations, the club failed to pay his remuneration.
In this respect, the player stressed that he put the club in default of payment, to no avail.
7.
Moreover, the player held that, upon having been put in default of payment, the club
adopted an abusive behaviour towards him. In particular, the player mentioned the
following conducts allegedly adopted by the club:
-
Imposing an illegitimate sporting sanction on the player;
-
Only paying half of the player’s salary of May 2022.
b. Position of the Respondent
8.
In its reply, the club rejected the allegations of the player and held, inter alia, the following:
-
“That the player’s contract stipulated that the player would be paid a signing on fees for
the period of the contract and same was to be paid in instalment per year one and two
of the contract with no specifics as to when in the mentioned year”;
-
“That, the player has been paid in full all his signing-on fees long even before his
misconduct at the training grounds which necessitated the process of the disciplinary
procedure against him”;
-
“That it is not true that the player’s request for a non-existent arrears of the signing-on
fees brought any rift between the club and the player because the club did not owe him,
the club did not even bother to respond to that his letter which was regarded as an
afterthought and a struggle to create and fabricate stories to avoid the hearing of the
board of enquiry ahead of him”;
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“That the player was reported by the Head coach a complaint of misconduct at the
training grounds per a letter dated 28th April,2022 and same was forwarded to the
player for his response which he did and the head coach had replied to same”.
-
“That the player has refused to resume training after the club invited registered players
to resume training for the preseason preparations for the upcoming season” (the club
provides a document dated 28 July 2022 whereby the club informs the player that the
suspension imposed by the club is lifted and summoned the player to attend training
sessions on 31 July 2022).
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 referred to as
the Single Judge analysed whether she was competent to deal with the case at hand. In
this respect, she took note that the present matter was presented to FIFA on 10 July 2022
and submitted for decision on 25 January 2023. 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 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 Ghanaian club.
3.
Subsequently, the Single Judge 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 (October 2022 edition)
and considering that the present claim was lodged on 10 July 2022, the July 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 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 she may
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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.
Her 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, she will refer only to the facts, arguments and documentary evidence,
which she 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 recalled that the Claimant is requesting to be awarded outstanding
remuneration and compensation for breach of contract in the total amount of GHS
142,100 (approx. USD 14,000), since -as argued by the player- the club breached the
contract by failing to pay the second instalment of the sign-on fee and half of his salary of
May 2022. In addition, the Single Judge noted that the player argued that the club initiated
groundless disciplinary proceedings against him.
7.
Moreover, the Single Judge observed that, on its part, the club acknowledged having
initiated disciplinary proceedings against the player upon the player’s behaviour, which
was reported in the head coach’s letter of 28 April 2022 and further acknowledged having
decided to cut the player’s salary by half. As to the alleged outstanding remuneration due
to the player (the sign-on fee), the Single Judge noted that the club held that it duly
complied with the payment of the full sign-on fee.
8.
The above being explained, the Single Judge underscored that, the parties not having
formally terminated the contract, it is to be presumed that the player unilaterally
terminated the contract on 10 July 2022, date on which the player lodged a claim against
the club before the Football Tribunal, in accordance with the jurisprudence of the DRC. In
this understanding, continued the Single Judge, the question that follows is whether the
Claimant terminated the contract with or without just cause on the aforementioned date.
9.
In this regard, the Single Judge stated that, even though the club assures having
proceeded with the payment of the second instalment of the sign-on fee (GHS 58,000),
the club has not provided proof of payment thereof.
10. In addition, the Single Judge stressed that, although it is true that the contract does not
establish the due date of the instalments in which the sign-on fee was to be paid, in
accordance with the jurisprudence of the DRC, sign-on fees are payable (in the absence
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of a due date contractually agreed), at the beginning of the contractual relationship or at
the beginning of the corresponding season.
11. In the case at hand, continued the Single Judge, considering that the duration of the
contract was of 2 years and that the very contract specifies that the sign-on fees are
payable in 2021 and 2022, respectively, the Single Judge determined that the instalments
of the sign-on fee, as alleged by the player, were payable at the beginning of the
respective year, i.e. by January of the relevant year.
12. Moreover, the Single Judge underscored that, although the club has provided
documentary evidence pertaining to the letter of the head coach, wherein the latter
describes the misconduct of the player, the club has failed to provide evidence of having
effectively notified the player about the initiation of the disciplinary proceedings and
having granted the player the opportunity to submit his comments. Furthermore, the
Single Judge wished to highlight that the club has failed to justify the proportionality of its
decision to cut the player’s salary by half for a non-determined period.
13. In view of all of the above, the Single Judge decided that the club has not met its burden
of proof to demonstrate neither the rightfulness of the salary cut imposed on the player,
nor the payment of the second instalment of the sign-on fee requested by the Claimant.
14. Thus, considering that the said second instalment exceeds in much the value of 2 monthly
salaries of the player, the Single Judge decided that the player did terminate the contract
with just cause on 10 July 2022 (date of claim) in accordance with art. 14 of the
Regulations.
ii. Consequences
15. Having stated the above, the members of the Single Judge turned his attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
16. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player are equivalent to GHS 60,900,
i.e. the second instalment of the sign-on fee and half of the salary of May 2022.
17. 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. GHS 60,900.
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18. The above being established, the Single Judge stated that, insofar as the Claimant failed
to request to be awarded any default interest, no default interest shall be granted to the
Claimant (ne ultra petita).
19. 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.
20. In application of the relevant provision, the Single Judge held that she, 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. In this regard, the Single
Judge established that no such compensation clause was included in the employment
contract at the basis of the matter at stake.
21. As a consequence, the Single Judge determined that the amount of compensation payable
by the club to the player 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 non-exhaustive enumeration of criteria to be taken into consideration
when calculating the amount of compensation payable.
22. 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 GHS 40,600 (salaries as from June 2022
until December 2022, i.e. 7 salaries) serves as the basis for the determination of the
amount of compensation for breach of contract.
23. 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.
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24. Notwithstanding the above, the Single Judge duly observed that the player did not find
any new employment following the termination of the contract and, hence, he could not
mitigate his damages.
25. 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 GHS 40,600 to the player (i.e. the salaries payable as from June 2022 until
December 2022), which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
26. Lastly, the Single Judge noted that – again – as the Claimant failed to request to be
awarded any default interest, no default interest shall be granted to the Claimant (ne ultra
petita) in connection with the compensation for breach of contract awarded.
iii. Compliance with monetary decisions
27. 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.
28. 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.
29. 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.
30. 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.
31. 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.
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d. Costs
32. 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.
33. 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.
34. Lastly, the Single Judge concluded her deliberations by rejecting any other requests for
relief made by any of the parties.
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, AMED TOURE, is partially accepted.
2.
The Respondent, Medeama SC, has to pay to the Claimant the following amount(s):
- GHS 60,900 as outstanding remuneration;
- GHS 40,600 as compensation for breach of contract.
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.
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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
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
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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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