Labour Disputes
Texto da decisão
REF. FPSD-13142
Decision of the
Dispute Resolution Chamber
passed on 13 March 2024
regarding an employment-related dispute concerning
the player Yakubu Wadudu
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Alexandra GOMEZ Bruinewoud (Uruguay & the Netherlands), Member
Oleg ZADUBROVSKIY (Russia), Member
CLAIMANT:
Yakubu Wadudu, Ghana
Represented by Mawuli Kwaku Avorgah
RESPONDENT:
Peshmerge Sports Club, Iraq
pg. 2
REF. FPSD-13142
I.
Facts of the case
1.
On 23 July 2023, the Ghanian player, Mr Yakubu Wadudu (hereinafter: Player or Claimant),
and the Iraqi club, Peshmerge Sports Club (hereinafter: Club or Respondent), concluded
an employment contract valid as from 1 August 2023 until 30 April 2024 (hereinafter:
Employment Contract).
2.
Pursuant to clause 2 of the Employment Contract, the Player would be entitled to USD
2,500 as monthly salary.
3.
The main provisions of the Employment Contract read as follows:
“3 – The [Club] will pay [the Player]’s arrival and departure flight fees (first time and last
time) from Ghana to Iraq.
[...]
7 – The [Club] should pay costs of injury and medical care inside Iraq.
8 – The [Player] should not claim to be injured before it is claimed by a specialist doctor.
[...]
10 – The [Club] has the right of cancelling or terminating the contract or to not pay the
monthly fees in the following conditions:
[...]
b) In case of incomplete physical, mental, and artistic traits.
[...]
d) Absence of the [Player] during exercise without any justification.
[...]
h) If the [Player] did not participate in the championship without any justification.
[...]
11 – The [Club] has the right to cutoff an amount of the player’s salary in the following
cases:
a) During the absence of the [Player] (100,000 IQD) one hundred thousand Iraqi dinars
will be cutoff for each day.
pg. 3
REF. FPSD-13142
[...]
c) If the [Player] did not apply any points of the contract the [Club] can terminate the
contract.
d) An amount of money will be cutoff or the contract will be terminated when the [Player]
is absent during exercise, match, league, championship.
12 – 25% twenty five percent of the contract will be cutoff if the [Player] did not
participate in the matches”.
4.
On 26 October 2023, the Player availed himself at the Harem Hospital and was diagnosed
with an injury in his right ankle.
5.
On 19 November 2023, the Player flew from Sulaymaniyah (Iraq) to Kotoka (Ghana), with a
stopover in Doha (Qatar). The flight tickets were issued by the Club.
6.
On 5 December 2023, the Club wrote to the Player via email and stated as follows, in verbis:
“Dear Mr. Wadudu Yakubu,
After greetings, we would like to inform you that the Iraq premier league officially has
been started and we are going to play the second game on this Friday. We expect you
to come back and join the team as soon as possible. With appreciation”.
II. Proceedings before FIFA
7.
On 21 December 2023, the Player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Claim of the Player
8.
In his claim, the Player explained that he sustained an injury in October 2023, after signing
the Employment Contract with the Club. He highlighted, in this respect, that the Club was
liable to provide him with the appropriate medical care, however it decided to abruptly
terminate their contractual relationship and send him back to Ghana instead.
9.
The Player explained that the Club booked him flight tickets to Ghana in November 2023,
therefore breaching the Employment Contract. Consequently, he requested to be awarded
USD 22,500 as compensation for breach of contract (i.e., his entire remuneration) plus 5%
interest p.a. as from 19 November 2023 until the date of effective payment.
pg. 4
REF. FPSD-13142
b. Reply of the Club
10. On 24 January 2024, the Club filed its reply to the claim of the Player and stated the
following, quoted verbatim:
“The claimant alleges that our club has not fulfilled its contractual obligations regarding
the treatment of the claimant during the injury that the player claims to have suffered.
Despite this, our club promptly referred the player for treatment as soon as the player
claimed to have suffered an injury. The required treatment for the player has been
specified as outlined in the medical report attached to this statement dated 26/10/2023
by Dr. Ranj Rafiq Mohammed Ali at the Herm Hospital.
It is worth noting that our club is obligated to provide treatment to the player only within
Iraq.
Despite all of this, the player has refused to undergo the specified treatment by the
designated doctor and insisted on returning to his homeland, Ghana. The team's coach
has agreed to this request, and as part of the contractual obligations by the club, we
have borne all the expenses for the player's travel, as confirmed by the player who stated
that he received the airline ticket as part of his documentation.
Apart from all of the above, the player has breached his contract in the following points,
which we present to your attention:
1. The player has been absent from team training sessions without any justified excuse,
which contradicts his contractual obligations as stipulated in clause 10 point (d). Despite
the coach of the team having summoned the player during his stay in his home country
through email, as attached in the regulations.
2. The player's absence resulted in his non-participation in tournaments, causing
significant problems for the club, thereby violating clause 10 point (h).
3. Additionally, the player has not adhered to the training schedule, constituting a breach
of his contract according to the fifth clause of the agreement between us.
Based on all that has been mentioned, the club has decided to exercise its rights as
stipulated in the signed contract and present before you the termination of the player's
contract.
Despite all the aforementioned issues, the player attempts to extort the club by filing a
complaint before your esteemed authority, seeking to obtain rights to which he is not
entitled.
pg. 5
REF. FPSD-13142
Therefore, we request that your esteemed authority dismiss the complaint filed by the
player and hold him liable for compensating all damages incurred by our club due to
the player's failure to adhere to his contractual obligations”.
c. Rejoinder of the Player
11. On 3 February 2024, the Player filed his rejoinder in this matter.
12. Initially, the Player denied having ever agreed with the Club to undergo treatment in his
home country and subsequently return to its premises. Had that been the case, the Player
claimed that the Club should have issued him the return ticket as well, and not only a oneway flight to Ghana. The Player insists, in this respect, that the Club refused to provide him
with medical care and communicated to him the termination of the Employment Contract
due to his injury (cf. clause 10, lit. b) of the Employment Contract), without just cause.
13. In continuation, the Player argued that the Club did only ask him to return to its premises
upon becoming aware of his intention to seek compensation for breach of contract. As
such, the Club never indeed requested him to re-join the team, and/or had valid grounds
to question his absence. In support of his argumentation, he filed a screenshot of a
WhatsApp conversation with a third party, however without proper identification and/or
copy of the audio files therein mentioned.
14. The Player reiterated his requests for relief in line with the statement of claim.
d. Final comments of the Club
15. On 12 February 2024, the Club filed its final comments on this matter and stated as follows,
quoted verbatim:
“All that has been presented so far by the opponent's lawyer is merely an attempt to
mislead your honors up to this moment. The opponent's lawyer has not presented any
evidence to support his claim. Everything he presents is from his personal judgment, as
evidenced when we present the official report from the doctor stating that the date on
the report is a new date without mentioning that the content of the official report
specifies the date on which the player returned for treatment, and without mentioning
also that the club is only obligated to treat the player within Iraq only.
Regarding the email submitted by the club, it is conclusive evidence of the player's noncompliance with his contract with the club. However, the opponent's lawyer is trying to
divert your attention from the main issue and claims that the email was sent after we
knew that the player had instructed his lawyer. We have repeatedly tried to bring the
player back, and when the player did not agree, we then sent the email as it is clear in
pg. 6
REF. FPSD-13142
the email that the player is attempting to extort the club and is demanding a sum of
money in exchange for his return.
As for the player's failure to comply with his training obligations only in his country, its
existence is evident and does not require any proof. Therefore, we reiterate the requests
mentioned in our previous memorandum and demand that the player be held
responsible for all damages incurred by the club as a result of his non-compliance with
his contract”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. First of all, the Dispute Resolution Chamber (hereinafter: 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 21 December 2023 and submitted for decision
on 13 March 2023. Taking into account the wording of art. 34 of the March 2023 edition of
the Procedural Rules Governing the Football Tribunal (hereinafter: Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
17. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (February 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 Ghanian player
and an Iraqi club.
18. 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 (February 2024 edition) and
considering that the present claim was lodged on 21 December 2023, the May 2023 edition
of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
19. 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).
pg. 7
REF. FPSD-13142
c. Merits of the dispute
20. 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
21. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that this is a claim for compensation for breach of contract
lodged by the Player against the Club.
22. In particular, the Chamber noted that the Player alleges having sustained an injury in the
end of October 2023 following which the Club (i) refused to provide medical care; (ii) tried
to force him to sign a termination agreement; and (iii) ultimately terminated the
Employment Contract by issuing a one-way ticket to his home country. On this basis, the
Player claims to be entitled to compensation for breach of contract.
23. On the other hand, the Chamber was also observant that the Club acknowledges the
occurrence of the Player’s injury, however, contends that he was the one to refuse
treatment in Iraq. According to the Club, the Player requested to undergo treatment in
Ghana and failed to return in continuation, without authorization. Thus, the Club disputes
the Player’s entitlement to any compensation.
24. In this context, the DRC outlined – while noting thar hardly any supporting evidence has
been provided by the parties in these proceedings – that the following events remained
undisputed between the parties and are relevant to analysis at hand:
• the parties concluded the Employment Contract valid from 1 August 2023 until 30
April 2024;
• in the end of October 2023, the Player injured his ankle;
• on 19 November 2023, the Player flew from Iraq to Ghana and the flight tickets were
issued by the Club; and
• on 5 December 2023, the Club requested the Player to attend upcoming sporting
events, to no avail.
pg. 8
REF. FPSD-13142
25. The Chamber also acknowledged that following the Player’s return to Ghana, the only
communication between the parties was the Club’s email dated 5 December 2023.
26. In a nutshell, the DRC established that the disagreement between the parties – and to be
assessed by the Chamber in the case at hand – lies on the circumstances of the termination
of the Employment Contract, especially: (i) whether the Player’s return to Ghana was made
on his initiative or the Club’s, (ii) when and under which justification the Employment
Contract was terminated (if ever); and (iii) the ensuing consequences.
27. The Chamber then moved to the analysis of each topic in turn.
28. As a departure point, the DRC highlighted that the parties advanced almost no evidence in
support of their allegations reason why the factual background of the case can be barely
reconstructed.
29. Whilst it is clear for the Chamber the contractual relationship existed, the facts leading to
its termination are almost undocumented. The Chamber remarked that only evidence on
file is as follows:
• Medical report and examinations: the Club filed a medical report suggesting that the
Player attended a medical appointment on 26 October 2023, underwent
examinations, was diagnosed with an injury, and refused treatment. The Player
however challenged the contents of the report (especially to what concerns his refusal
to the treatment) and argued that it was produced by the Club during the
proceedings.
• Flight tickets: the parties concurred that the flight tickets were issued by the Club and
that the Player indeed returned to his home country on 19 November 2023.
• Club’s email of 5 December 2023: the Club requested the Player to avail himself for
the upcoming training sessions and matches.
30. Against this background, the Chamber determined that there is no evidence on file
regarding the alleged termination by initiative of any of the parties.
31. On the Player’s side, there is no proof that the Club ever refused to provide medical care
and/or that it ever manifested any intention to terminate the Employment Contract (e.g., a
medical opinion corroborating that he indeed sought treatment with the Club, the copy of
the termination agreement allegedly provided by the Club, a termination notice, or the
like).
32. Conversely, on the Club’s side, there is no proof that the Player requested to be treated in
his home country. There is also no calendar set out for the parties for his treatment in
Ghana and subsequent return to Iraq. The Club did also not corroborate that it reported
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REF. FPSD-13142
the Player’s absence, engaged in proactive steps for him to return to the country (other
than the e-mail of December), and/or opened any type of disciplinary proceedings against
him for breach of contract.
33. The DRC found it equally important that none of the parties put the other in default at any
moment in time, as well as they did not advance any documentation suggesting that they
ever reached an official agreement as to the end of their employment relationship. The
Player challenged the Club’s true intention with email dated 5 December 2023; however,
he did also not provide a reply. The only action taken by the Player was the submission of
the claim at hand, however with barely any body of evidence.
34. In consideration of all the above the DRC stressed that the Player’s narrative concerning
the alleged termination by the Club due to his injury, if supported by evidence, could hold
the Club liable for breach of contract. Nevertheless, from the lack of documentation on file,
the Chamber decided that the Player could not establish that a breach of contract from the
Club’s side occurred.
35. In other words, despite feeling unimpressed by the behaviour of the Club to what concerns
the proactive steps for the Player’s medical care in Iraq, the Chamber underscored that it
was for the party claiming compensation for breach of contract, i.e., the Player, to
corroborate what truly happened between the end of October 2023 and until the
submission of the claim at hand (cf. art. 13, par. 5 of the Procedural Rules). By failing to do
so, the Chamber decided that the Player failed to demonstrate the occurrence of a
termination without just cause by the Club and, consequently, to establish his entitlement
to any compensation. This part of his claim was accordingly rejected.
36. In the Chamber’s view, the abovementioned assessment is however irrespective of the
Player’s entitlement to the outstanding remuneration for the period he was unequivocally
rendering services to the Club (i.e., until 19 November 2023).
37. Based on the general legal principle of pacta sunt servanda, the DRC decided that the Player
should be awarded the following amounts:
•
•
•
•
USD 2,500 as the salary of August 2023;
USD 2,500 as the salary of September 2023;
USD 2,500 as the salary of October 2023;
USD 1’583.33 as the pro rata salary of November 2023 (i.e., 19 days).
38. In addition, the Chamber determined that the Player should in principle be also entitled to
interest at the rate of 5% p.a. on the outstanding amounts as from the due date of each
salary until the date of effective payment. Nevertheless, because the Player requested the
interests to be applied as from 19 November 2023 only, the Chamber awarded said
interests as claimed in order not to violate the principle of ne ultra petita.
pg. 10
REF. FPSD-13142
39. For completeness, the Chamber confirmed that after the Player’s return to Ghana the
parties mutually departed from the execution of the Employment Contract and/or could
not demonstrate otherwise, entailing that no compensation for breach of contract shall be
awarded.
ii. Compliance with monetary decisions
40. 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.
41. 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.
42. 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 Club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
43. 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.
44. 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
45. 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.
pg. 11
REF. FPSD-13142
46. 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.
47. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 12
REF. FPSD-13142
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Akubu Wadudu, is partially accepted.
2.
The Respondent, Peshmerge Sports Club, must pay to the Claimant the following
amount(s):
- USD 9,083.33 as outstanding remuneration plus 5% interest p.a. as from 19 November
2023 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. 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.
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
pg. 13
REF. FPSD-13142
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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pg. 14