FIFA - Decisión disputa Ibrahim 15112023

REF. FPSD-10959

Decision of the Dispute Resolution Chamber passed on 15 November 2023 regarding an employment-related dispute concerning the player Imoro Ibrahim BY: Lívia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman Dana MOHAMED AL-NOAIMI (Qatar), member Stefano SARTORI (Italy), member

CLAIMANT/COUNTER-RESPONDENT:

Club Al Hilal KH, Sudan Represented by Pedro Macieirinha RESPONDENT/COUNTERCLAIMANT: Imoro Ibrahim, Ghana Represented by Antas da Cunha e Associados pg. 2

REF. FPSD-10959

I. Facts of the case

1. On 3 August 2022, the Sudanese club Al Hilal (hereinafter: the Club or Claimant/CounterRespondent) and the Ghanian player Imoro Ibrahim (hereinafter: the Player or RespondentCounterclaimant) entered into an employment agreement (hereinafter: the Contract) valid as from the same date until 2 August 2027.

2. In accordance with Contract, the Club undertook to pay to the Player inter alia a monthly salary of USD 4,000 net plus an additional amount of USD 400 net as housing allowance each month.

3. By correspondence dated 6 June 2023, the Player put the Club in default of payment of USD 12,600 as outstanding remuneration, setting a time limit expiring on 21 June 2023 in order to remedy the default.

4. On 9 June 2023, the Club replied to the Player arguing that all bank accounts in Sudan had been frozen due to the ongoing civil war. In this context, the Club promised the Player to pay all his due salaries in cash, in the territory of Egypt and that a “camp” would have been set on 20 June 2023.

5. On the same date, the Player sent another letter to the Club, informing the latter of having

no intention to attend the training camp in Egypt in case the Club had not paid his overdue salaries, while confirming the intention to terminate the Contract as per what previously stated in his default letter dated 6 June 2023.

6. By means of letter dated 21 June 2023, the Player notified the unilateral termination of the Contract to the Club.

II. Proceedings before FIFA

7. On 18 July 2023 the Club filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the Club

8. In its claim, the Club argued having been not able to pay the Player’s salaries on time due to the socio-political crisis suffered by Sudan because of the civil war and the subsequent seizures of bank accounts.

9. In this context, the Club stated that although it had promised the Player to pay the overdue amounts on 20 June 2023 during the relevant Club’s training camp in Egypt, the Player pg. 3

REF. FPSD-10959 refused to travel and join the team in Egypt, hence it was materially impossible for the Club to pay him.

10. In this respect, the Club was of the opinion that the Player acted in bad faith and terminated the Contract without just cause, hence the Club held that it shall be compensated for the said breach by the Player. Moreover, the Club argued that the Player did not respect the period of grace granted in his default notice dated 6 June 2023 since he terminated the Contract on 21 June 2023, namely within the 15th day.

11. In calculating the claimed compensation for breach of contract, the Club computed the residual value of the Contract plus the non-amortized transfer fee previously paid to the Player’s former club. In addition, the Club referred to 6 June 2023 as the date in which the Player would have breached the Contract, thus the day as from which the relevant interest on the compensation shall run.

12. Accordingly, the requests for relief of the Club were:

“(..) that the Claimant [the Club] did not breach the Contract, and that the non-payment of the relevant amounts was due to a force majeure situation; (..)that the Player breached the Contract, and then terminated it without just cause; (..) that the Respondent [the Player] pay compensation for wrongful termination in the amount of USD 510,431.50 + 5% p.a. as interests as of 6 June 2023 until the effective date of payment”. b. Position of the Player

13. In his reply, the Player argued having acted in good faith by leaving time to the Club to comply with its financial obligations in spite of the several months of delay.

14. Furthermore, the Player stated that although the Club had issued a communication about a training camp in Egypt to be held on 20 June 2023, the same Club never provided the Player with any further detail nor travel documents, hence the Player was not even able to travel to Egypt.

15. In particular, according to the Player, the Club never communicated a specific date for the exact payment of the overdue monies, nor it has ever clarified the reasons for the delay during the months prior to the termination.

16. In this context, the Player alleged that the Club failed to pay three salaries corresponding to the period between March and May 2023 as well as the relevant housing allowance; hence he held having had just cause to terminate the Contract on 21 June due to the consistency of the said outstanding debts. pg. 4

REF. FPSD-10959

17. Accordingly, the Player lodged a counterclaim against the Club and requested to be awarded a total of USD 12,600 as outstanding remuneration plus the relevant default interest. The Player did not make any claim regarding compensation for breach of contract.

c. Club’s reply to the counterclaim

18. In response to the counterclaim, the Club maintained its previous allegations, insisting in particular on having properly informed all its players (including the Respondent/Counterclaimant) about the relevant training camp in Egypt as well as the

several difficulties related to the Sudanese civil war.

19. In this context, the Club held that the Player had clearly no intention to maintain any employment relationship and openly refused to join the relevant training camp in Egypt in violation of his duties under the Contract, thus not allowing the Club to comply with its financial obligations in spite of the fact that the relevant payments had been granted by the latter by means of letter dated 9 June 2023.

20. Accordingly, the Club reiterated that the Player has de facto refused being paid against the will of the Club and terminated the Contract without just cause, hence the Club shall be compensated for the said breach.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

21. 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 18 July 2023 and submitted for decision on 15 November 2023. 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.

22. 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 May 2023 edition), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Sudanese club and a Ghanian player. pg. 5

REF. FPSD-10959

23. 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 (May 2023 edition) and considering that the present claim was lodged on 18 July 2023, the aforementioned edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. b. Burden of proof

24. 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

25. 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.

1. Main legal discussion and considerations

26. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that the parties strongly dispute as whether the Player had just cause to terminate the employment contract and the consequences that follow.

27. Before entering the analysis of this specific case, the Chamber deemed it appropriate to remind the parties that only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria which do not reasonably permit to expect the continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more

lenient measures which can be taken in order to ensure the fulfilment of the contractual duties by the counterparty, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure. pg. 6

REF. FPSD-10959

28. In line with the above, the Chamber also referred to the specific wording of art. 14 par. 2 of the Regulations, according to which “any abusive conduct of a party aiming at forcing the counterparty to terminate or change the terms of the contract shall entitle the counterparty (a player or a club) to terminate the contract with just cause”.

29. In this context, the Chamber observed that it remained undisputed that at the time of the termination by the Player, on 21 June 2023, the Club was in default of 3 monthly salaries, i.e., March, April and May 2023.

30. In this respect, the Chamber took note of the reasons alleged by the Club with regard to the non-payment of the relevant Player’ salaries during the civil war in Sudan, in particular the financial restrictions deriving from being subject to bank seizures which would objectively impede the Club to comply with its financial obligations towards its squad.

31. Equally, the Chamber noticed that according to the Club, the Player had been promised to receive all the outstanding sums once he had travelled to Egypt, in occasion of the relevant training camp organized by the Club, hence the latter’s default would have been cleared if the Player had followed the Club’s instructions, quod non.

32. Notwithstanding the above, the Chamber observed that the Club has not corroborated its position, namely as it failed to provide evidence of the referred bank account‘ seizures and, more in general, of the alleged impossibility of paying the Player earlier than 20 June 2023 or even after.

33. Conversely, based on the documentation in its possession, the Chamber noticed that the Club remained inert during several months prior to the Player’s default notice dated 6 June

2023, without providing the Player with any justification as to the undisputed delays in the payments of the latter’ salaries and thus failing to comply with its financial obligations during the relevant contractual period.

34. Moreover, in the Chamber’s view, the Club did not make any effort to safeguard the Player’s expectations that the Club would resume complying with its financial obligations under the Contract, namely as the Club’s letter dated 9 June 2023 apparently referred to the day of 20 June 2023 as the date for the relevant training camp to be held in Egypt and not as the effective deadline for payment of the Player’s outstanding salaries. In this regard, the Chamber also noticed that, as per the same Club’s admission in its reply to the counterclaim, the training camp date had been subsequently shifted geographically and temporally, in particular to Tunisia on 27 June 2023, proving, once again, the unreliability of the Club’s communications.

35. Bearing in mind the foregoing as well as the principle of burden of proof, the Chamber noted that the behaviour of the Club resulted clearly and deliberately abusive.

Furthermore, the Chamber took note of the evidence provided by the Player, showing that he consistently and in good faith tried to contact the Club and be allowed to comply with pg. 7 REF. FPSD-10959 the terms of the employment contract by granting a further deadline despite having the Club been in delay of several salaries and housing allowances. In this context, the Chamber concluded that the circumstances of the present case are in line with art. 14 par. 2 of the Regulations and therefore the Player had a just cause to terminate the Contract, due to the abusive conduct of the Club.

36. Accordingly, the Chamber decided to reject the Club’s claim and to accept the Player’s counterclaim in its entirety.

37. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Club is liable to pay to the Player the amounts which remained outstanding, i.e., USD 12,600.

38. In addition, taking into consideration the Player’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the latter decided to award the Player interest at the rate of 5% p.a. on the outstanding amounts as from the respective due dates until the date of effective payment.

39. Finally, and for the sake of good order, the Chamber wished to remark that, in principle, the party being in breach of contract shall be liable to pay compensation to the counterparty, based on art. 17 par. 1 of the Regulations. Nonetheless, the Chamber observed that in the case at stake the Player limited his claim to the outstanding remuneration due by the Club until May 2023, hence pursuant to the general principle of ne ultra petita the Chamber’s award shall be limited accordingly. 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 Claimant/CounterRespondent must pay the full amount due (including all applicable interest) to the Respondent-Counterclaimant within 45 days of notification of the decision, failing which, at the request of the Respondent-Counterclaimant, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and pg. 8

REF. FPSD-10959 consecutive registration periods shall become immediately effective on the Claimant/Counter-Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.

43. The Claimant/Counter-Respondent shall make full payment (including all applicable interest) to the bank account provided by the Respondent-Counterclaimant 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.

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. 9

REF. FPSD-10959

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant/Counter-Respondent, Al Hilal KH, is rejected.

2. The counterclaim of the Respondent/Counterclaimant, Imoro Ibrahim, is accepted.

3. The Claimant/Counter-Respondent, Al Hilal KH, must pay to the Respondent/Counterclaimant the following amount(s):  USD 4,200 as outstanding remuneration plus 5% interest p.a. as from 1 April 2023 the

date of effective payment;   USD 4,200 as outstanding remuneration plus 5% interest p.a. as from 1 May 2023 the date of effective payment;   USD 4,200 as outstanding remuneration plus 5% interest p.a. as from 1 June 2023 the date of effective payment;

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 Claimant/Counter-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 Respondent/Counterclaimant 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. 10

REF. FPSD-10959

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

Fédération Internationale de Football Association FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 11