Labour Disputes
Texto da decisão
REF. FPSD-13490
Decision of the
Dispute Resolution Chamber
passed on 13 June 2024
regarding an employment-related dispute concerning
the player Moses Turay
BY:
Clifford J. HENDEL (USA), Deputy Chairperson
Angela COLLINS (Australia) member
Laurel VAURASI (Fiji), member
CLAIMANT / COUNTER-RESPONDENT:
Moses Turay, Sierra Leone
Represented by Feda Dupovac
RESPONDENT / COUNTER-CLAIMANT:
Pharco SC, Egypt
Represented by Nehad Hagag
pg. 2
REF. FPSD-13490
I. Facts of the case
1.
On 25 July 2023, the player from Sierra Leone, Moses Turay (hereinafter: Claimant/CounterRespondent or player) and Pharco SC (hereinafter: club or Respondent/Counter-Claimant)
concluded an employment contract (hereinafter: contract) valid as from 25 July 2023 until
30 July 2027.
2.
According to the contract, the Respondent undertook to pay the Claimant the following
monies:
- USD 15,000 on 30 August 2023;
- USD 3,000 as monthly salary between 30 September 2023 and 30 June 2024 (10x);
- USD 15,000 on 30 July 2024;
- USD 17,500 on 30 August 2024;
- USD 3,500 as monthly salary between 30 September 2024 and 30 June 2025 (10x);
- USD 17,500 on 30 July 2025;
- USD 20,000 on 30 August 2025;
- USD 3,500 as monthly salary between 30 September 2025 and 30 June 2026 (10x);
- USD 20,000 on 30 July 2026;
- USD 25,000 on 30 August 2026;
- USD 5,000 as monthly salary between 30 September 2026 and 30 June 2027 (10x);
- USD 25,000 on 30 July 2027.
3.
According to the club, on 13 December 2023, the player left Egypt without authorization
from the club.
4.
On 1 January 2024, the player put the club in default and requested payment of his salaries
for November and December 2023, within 15 days.
5.
On 17 January 2024, the player terminated the contract with the club due to the
outstanding remuneration.
6.
The player confirmed that he remained unemployed until today.
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REF. FPSD-13490
II. Proceedings before FIFA
7.
On 25 January 2024, 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
8.
In his claim, the player requested payment of the following monies:
- USD 6,000 as outstanding remuneration (November and December 2023);
- USD 288,000 as compensation for breach of contract (residual value).
The player requested interest of 5% p.a. as of the termination date.
9.
In his claim, the player argued that he had just cause to terminate the contract due to the
outstanding remuneration.
b. Position of the Respondent / Counterclaim
10. In its reply, the club rejected the player’s claim and lodged a counterclaim against him,
requesting payment of USD 310,000 as compensation for breach of contract (residual
value), plus 5% interest p.a. as well as legal costs of USD 5,000.
11. The club argued that it made the following payments to the player:
- USD 15,000 on 30 August 2023;
- USD 3,000 on 29 September 2023;
- USD 3,000 on 30 October 2023;
- USD 3,000 on 28 November 2023.
12. On account of the above, the club argued that there were not 2 monthly salaries
outstanding, as alleged by the player.
13. Moreover, the club held that the default notice sent by the player was not received by the
club.
14. The club alleged that the player left Egypt on 13 December 2023 without authorization from
the club and that it notified the Egyptian FA about this.
15. On account of the above, the club maintained that the player had no just cause to
terminate the contract on 17 January 2024 and that it is entitled to compensation for
breach of contract.
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REF. FPSD-13490
c. Reply to the counterclaim
16. In his reply to the counterclaim, the player rejected the club’s claim.
17. The player denied having received the instalment of USD 3,000 on 29 September 2023 and
alleged that this receipt was “forged” by the club as he did not sign it. He held that it is
obvious when looking at the actual signatures.
18. On account of the above, the player insists that the total amount of two monthly salaries
was outstanding at the time of termination.
19. Furthermore, the player held that the email address used for the default notice was
displayed on the club’s official webpage and therefore was validly notified.
20. According to the player, the club was no longer interested in the player’s services and
therefore stopped paying him.
21. As to the alleged absence, the player held that no disciplinary actions were taken by the
club as they were not interested in his services anymore.
22. Further, he argued that the club was already in breach of its financial obligations at this
point, therefore he could not be in breach.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
23. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) 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 25 January 2024 and submitted
for decision on 13 June 2024. Taking into account the wording of art. 34 of the March 2023
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.
24. Subsequently, the members of the Chamber 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 June 2024 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 a player and a club.
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REF. FPSD-13490
25. 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 2024 edition), and
considering that the present claim was lodged on 25 January 2024, the May 2023 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
26. 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. Merits of the dispute
27. 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 above-mentioned 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
1.
The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the matter at hand concerns a claim of a player
against a club for breach of contract, including a counterclaim of the club.
2.
In this context, the Chamber acknowledged that its task was to decide if the player
terminated the contract with or without just cause, and to decide on the consequences.
3.
The DRC noted that according to the player, he terminated the contract due to outstanding
remuneration based on art. 14bis RSTP with just cause on 17 January 2024.
4.
The members of the Chamber also acknowledged that the club argued that only one
monthly salary was outstanding at the time of termination, that it never received the
default notice and that the player was absent without authorization. The club submitted
signed receipts showing their payments to the player. Therefore, the club argued that the
player had no just cause to terminate the contract and lodged a counterclaim against the
player.
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REF. FPSD-13490
5.
In this framework, the DRC noted that the player contested one of the submitted receipts
and held that he never signed it (and therefore had not received the instalment in question.
6.
The Chamber had to decide if such payment was indeed remitted to the player or not, and
consequently if the player had just cause to terminate the contract or not.
7.
The SRC also took note of the fact that the parties dispute the authenticity of the payment
receipt dated 29 September 2023. In particular, while the club states that the payment was
made and the player signed the receipt, the player denies having received such payment
and having signed such document. Thus, the Chamber understood that it would need to
establish whether the disputed document could in fact be taken into consideration in the
context of the present case.
8.
Bearing in mind the foregoing, the Chamber went on to analyse the documentation
provided by both parties in support of their position. The Chamber also emphasised that,
according to the last sentence of art. 13 par. 3 of the Procedural Rules it has ultimate
discretion to as to the weight it gives to evidence. The Chamber then took note that the
Claimant presented an expert report confirming that it was not the player’s signature.
9.
At this stage, the Chamber considered appropriate to remark that, as a general rule, FIFA’s
deciding bodies are not competent to decide upon matters of criminal law, such as the
ones of alleged falsified signature or documents, and that such affairs fall into the
jurisdiction of the competent national criminal authority. In order to be able to solve such
disputes in a satisfactory and timely manner, without the need to wait for the initiation and
conclusion of a potential criminal investigation, the Chamber adopts a practical procedure
in such cases, namely to request the party who claims the authenticity of the disputed
document to provide its original version via regular mail. If for a layman the document
appears to be authentic and in line with the further documentation on file, such document
is considered as authentic for the purposes of solving the dispute at hand.
10. The Chamber decided to follow the player’s argumentation and concluded that the
payment was not remitted, since he disputed the signatures and in the view of the
Chamber, it indeed looks slightly different.
11. On account of the above, the Chamber concluded that the player had not received his
remuneration corresponding to 2 monthly salaries at the time of the termination.
Furthermore, the player has provided written evidence of having put the Respondent in
default before unilaterally terminating the contract on 1 January 2024.
12. It has to be noted that in the case at hand the club bore the burden of proving that it indeed
complied with the financial terms of the contract concluded between the parties.
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REF. FPSD-13490
13. Consequently, on account of the above, considering that the club had thus repeatedly and
for a significant period of time been in breach of its contractual obligations towards the
player, the DRC decided that the player had just cause to unilaterally terminate the
employment contract on 17 January 2024 and that, as a result, the club is to be held liable
for the early termination of the employment contact with just cause.
14. Therefore, the members of the Chamber decided to reject the club’s counterclaim.
ii. Consequences
15. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the club.
16. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to 3 monthly
salaries (September 2023, December 2023 and January 2024) under the contract,
amounting to USD 9,000.
17. 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 which were outstanding under the contract at the moment of the termination, i.e.
USD 9,000 (i.e. 3 times USD 3,000).
18. 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 17 January 2024, as requested, until the
date of effective payment.
19. 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.
20. In application of the relevant provision, the Chamber held that it 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 Chamber
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REF. FPSD-13490
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 members of the Chamber 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 Chamber 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 Chamber 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 Chamber
concluded that the amount of USD 275,000 serves as the basis for the determination of the
amount of compensation for breach of contract.
23. In continuation, the Chamber 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.
24. The DRC noted that the player did not find new employment and was therefore not able to
mitigate his damages.
25. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of USD 275,000 to the player, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
26. 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 17 January 2024 until the date of effective
payment.
iii. Compliance with monetary decisions
27. 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.
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REF. FPSD-13490
28. In this regard, the DRC 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 DRC 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 player, 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 club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
31. The DRC 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
32. 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.
33. Likewise, and for the sake of completeness, 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.
34. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 10
REF. FPSD-13490
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Moses Turay, is partially accepted.
2.
The Respondent / Counter-Claimant, Pharco SC, must pay to the Claimant the following
amount(s):
- USD 9,000 as outstanding remuneration plus 5% interest p.a. as from 17 January 2024
until the date of effective payment;
- USD 275,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 17 January 2024 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent 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.
The counterclaim of the Respondent / Counter-Claimant is rejected.
6.
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 / Counter-Claimant 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.
7.
The consequences shall only be enforced at the request of the Claimant / CounterRespondent in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the
Status and Transfer of Players.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-13490
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 Governing the Football
Tribunal).
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
pg. 12