Labour Disputes
Texto da decisão
REF. FPSD-13373
Decision of the
Dispute Resolution Chamber
passed on 20 March 2024
regarding an employment-related dispute concerning
the player Koffi Marius Ange Bini
BY:
Sihon Gauci (Malta), Single Judge
CLAIMANT:
Koffi Marius Ange Bini, Ivory Coast
Represented by Abdulrahman Ahmed Ebrahim
RESPONDENT:
Club Alrustaq, Oman
pg. 2
REF. FPSD-13373
I. Facts of the case
1.
On 22 August 2023, the Ivorian player Koffi Marius Ange Bini (hereinafter: the Claimant or
the player) and the Omani club Alrustaq (hereinafter: the Respondent or the club) concluded
an employment agreement (hereinafter: the Contract) valid from 25 August 2023 until 20
May 2024.
2.
Pursuant to Schedule 1 of the Contract, the Respondent undertook to pay to the Claimant,
inter alia, a monthly salary of USD 3,000.
3.
Furthermore, in accordance with art. 9 of the Contract, the parties agreed that:
“if the player violates any of the obligations to which he is subject under this Contract, the
club may impose the following penalties:
-
Warning
Fine up to 75% of the monthly salary
Suspension
Terminate the Contract
(…)
these Contract-related penalties are laid down in the club’s own disciplinary regulations
and must concur with the Statutes and Regulations of the Oman Football Association and
OPL”.
4.
Lastly, art. 14 of the Contract establishes that:
“the Parties shall attempt to settle their dispute amicably and shall such attempts fail the
Parties shall refer their dispute to the competent authorities at Oman Football Association
or FIFA”.
5.
On 18 September 2023, the Respondent issued a “Warning letter” to the Claimant based
on the latter’s alleged delay of 34 minutes in “reporting to work”. On the margin of the said
document, the Respondent stated that the Claimant had refused to sign it.
6.
Subsequently, on 23 September 2023, the Respondent emitted a second warning letter to
the Claimant, stating that the latter had abandoned the training session without the
approval of his supervisor and that he had been absent without previous authorization. As
for the prior notice, the Claimant allegedly refused to undersign the second warning letter.
7.
Finally, on 7 October 2023, the Respondent addressed a third warning notice to the
Claimant, who once again allegedly refused to sign it. In this context, the Respondent
pg. 3
REF. FPSD-13373
accused the Claimant of not respecting the “technical and administrative instructions and
advice during training sessions and matches”. Contextually, the Respondent contested the
Claimant’s “decrease in fitness, technical and tactical levels”.
8.
On 27 October 2023, the Respondent’s First Team Assistant and First Team Director jointly
signed a document named “Technical Report concerning the player” by means of which they
informed the Chairman of the Respondent’s Board of Directors, Mr. Hilal Talib Suleiman Al
Busaidi, that the Claimant had committed several violations, including “voluntarily injuring
players through his aggressive play”.
9.
On the same date, the Respondent’s Board decided to terminate the Contract as
disciplinary measure against the Claimant.
10. On 29 October 2023, the Respondent sent a letter to the Claimant, informing the latter that
he would have been “exempted from playing with the club’s first team”.
11. By means of letter dated 30 October 2023, the Respondent notified the Claimant of the
unilateral termination of the Contract as final decision following the “disciplinary action
taken against the player”. Similarly to relevant warning letters, the Claimant allegedly
refused to sign the said document.
12. Allegedly on 1 November 2023, the Respondent signed a document whereby it apparently
accounted for the outstanding remuneration in favour of the Claimant, who however did
not sign it.
13. On 27 November 2023, the Claimant put the Respondent in default of payment of USD
27,000 and granted the latter 15 days in order to remedy the default.
14. On 1 February 2024, the Claimant signed a new employment contract with the Philippine
club United City FC, valid from the same date until 31 July 2024, according to which the
monthly salary of the player would amount to PHP 170,000 (approx. USD 3,039).
II. Proceedings before FIFA
15. On 16 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
16. According to the Claimant, the Respondent terminated the Contract without prior notice
on 30 October 2023.
pg. 4
REF. FPSD-13373
17. In this context, the Claimant argued being unaware of the reasons for which the
Respondent excluded him from the first team on 29 October 2023 nor the latter provided
any valid explanation for the subsequent termination.
18. Accordingly, the Claimant stated that the Respondent breached the Contract without just
cause and shall be held liable to pay compensation corresponding to the entire value of
the Contract.
19. The requests for relief of the Claimant, accordingly, were the following:
“The Respondent has to pay the Claimant outstanding compensation of US $27,00.00
(Twenty-Seven thousand US dollars) which represents the full contract value according to
Schedule 1 of the employment contract, plus amount of US $1,350.00 (One thousand
three hundred fifty- US dollars) as interest of 5%”.
b. Position of the Respondent
20. As a preliminary issue, the Respondent objected to the admissibility of the claim by the
player.
21. In particular, the Respondent argued that the Player should have exhausted the mandatory
remedy of the “amicable settlement” established under art. 14 of the Contract before lodging
the relevant claim in front of the Football Tribunal.
22. Accordingly, in the Respondent’s view, the player’s claim would be premature and shall be
rejected.
23. As to the substance, the Respondent declared having terminated the Contract based on
the several violations committed by the Claimant during the relevant contractual period.
24. In particular, the Respondent asserted that the Claimant maintained an aggressive and
uneducated conduct towards the Respondent and his teammates, hence the club
proceeded with the relevant warning letters.
25. In this respect, the Respondent stated that the Claimant was notified each of the alleged
violations in due time and was aware of the potential consequences as per what agreed
under the Contract. Nonetheless the Respondent affirmed that the Claimant refused to
sign all the warning letters addressed to him.
26. The Respondent therefore sustained having carried out a regular disciplinary evaluation of
the Claimant’s conduct during the employment relationship to the extent of being left with
no alternative but to terminate the Contract.
pg. 5
REF. FPSD-13373
27. Notwithstanding the above and in a subsidiarily way, the Respondent pleaded that in case
of claim deemed as admissible, the matter shall be considered as already settled after the
Respondent’s payment allegedly realized on 1 November 2023.
28. Accordingly, the Club submitted the following requests for relief:
“Original (1): the lawsuit is not accepted for filing it prematurely.
Reserve (2): reject the case and be satisfied with two-months’ salaries according to the final
settlement in the amount of 2,216,850 Omani Riyals, equivalent to 5,500 US dollars”.
c. Claimant’s comments on the alleged payments and disciplinary violations
29. On 8 February 2024, the FIFA General Secretariat (“GS) requested the Claimant to file
comments with regard to the payments allegedly made by the Respondent as well as the
relevant disciplinary proceedings.
30. In this respect, the Claimant argued having never received any of the relevant warning
letters signed by the Respondent nor having committed any violation of the Contract.
31. On the contrary, the Claimant pointed out that in the relevant letter dated 29 October 2023,
the Respondent had indeed congratulated with the Claimant for the work previously
performed, thus contradicting the alleged player’s misconduct.
32. Furthermore, the Claimant denied having ever been proposed any settlement agreement
by the Respondent nor having received any sum as compensation for the premature
termination of the Contract.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
33. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as 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 16 January
2024 and submitted for decision on 20 March 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.
pg. 6
REF. FPSD-13373
34. 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 (February 2024 edition), the Single Judge
of 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 an Omani club.
35. The Single Judge however noted that the Respondent challenged the admissibility of the
claim based on art. 14 of the relevant employment contract.
36. In this respect, the Single Judge recalled the wording of the mentioned provision, which
reads: “the Parties shall attempt to settle their dispute amicably and shall such attempts fail the
Parties shall refer their dispute to the competent authorities at Oman Football Association or
FIFA”.
37. Accordingly, the Single Judge took note that in the Respondent’s view the Claimant had not
exhausted all required internal procedures before approaching FIFA for a decision.
38. In this context, the Single Judge assessed that the parties’ will emerging from the said
provision was to promote genuine attempts to negotiate or mediate a resolution before
resorting to formal arbitration or legal proceedings. If any claim had been brought to FIFA
without prior efforts to negotiate or resolve the issue amicably, there could have been, in
principle, an element in support of the Respondent’s position.
39. However, the Single Judge noted that in the case at stake the Claimant sent a default notice
on 27 November 2023, i.e. approx. one month after the relevant termination had occurred,
granting a deadline of 15 days to the Respondent in order to remedy the default, and yet
the latter appear having completely ignored the Claimant’s attempt to solve the matter.
40. Furthermore, the Single Judge observed that the Respondent failed to provide evidence of
having at least attempted to establish a communication with the Claimant as since after
the relevant termination until the latter’s claim.
41. In view of the above, and recalling the principle of “nemo venire contra facta propria”, the
Single Judge determined that the Respondent shall not now challenge the Claimant’s right
to file a claim before the Football Tribunal, as it appears evident that the same Respondent
has previously closed the doors to any potential settlement agreement between the
parties.
42. Accordingly, the Single Judge concluded that the claim of the player shall be admissible.
43. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (February 2024 edition),
pg. 7
REF. FPSD-13373
and considering that the present claim was lodged on 16 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
44. 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
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
45. The 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
46. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute whether the club had
just cause to terminate the employment contract with the player on 30 October 2023.
47. In this respect, the Single Judge took note of the warning letters allegedly sent by the club
to the player as consequence of his misconduct as well as the following disciplinary
procedure based on which the mentioned termination would have occurred.
48. In view of the foregoing, the Single Judge referred to art. 13 par. 5 of the Procedural Rules
(March 2023 edition), according to which a party that asserts a fact has the burden of
proving it, and went on to analyse the documentation provided by the parties in support
of their allegations. In this respect, the Single Judge noted that the club submitted copy of
each warning letter as well as the relevant decision passed by the disciplinary board of the
club and the subsequent termination notice.
49. In this scenario, the Single Judge recalled the FIFA long-standing jurisprudence, according
to which only a breach or misconduct which is of a certain severity justifies the termination
of a contract without prior warning. In other words, only when there are objective criteria
which do not reasonably permit to expect the continuation of the employment relationship
pg. 8
REF. FPSD-13373
between the parties, a contract may be terminated prematurely. Hence, if there are more
lenient measures which can be taken in order for an employer to assure the employee’s
fulfilment of his contractual duties, such measures must be taken before terminating an
employment contract. A premature termination of an employment contract can only be an
ultima ratio.
50. Nevertheless, the Single Judge first observed that, as per same admission of the club, the
player did not sign any of the documents supposedly issued during the relevant disciplinary
procedure, nor the club has been able to provide any evidence of having effectively notified
the relevant warnings and letters to the player before terminating the Contract.
51. In this context, the Single Judge remarked that in the case at hand the club bore the burden
of proving that it indeed respected the player’s right to be heard. However, absent such
evidence the Single Judge decided that the Club position could not be upheld.
52. Accordingly, the Single Judge ascertained the absence of any reasonable justification by the
Respondent for retreating from the relevant contractual terms, thus breaching the
Contract without just cause on 30 October 2023 without just cause.
ii. Consequences
53. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
54. 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 two salaries
under the contract, amounting to USD 6,000.
55. 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. USD
6,000 (i.e. two times USD 3,000).
56. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Single Judge in this regard, the latter decided to award the Claimant interest at the
rate of 5% p.a. on the outstanding amounts as from 31 October 2023 until the date of
effective payment.
57. 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
pg. 9
REF. FPSD-13373
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.
58. 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.
59. 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.
60. 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 USD 21,000 (i.e. the residual value) serves as the basis for
the determination of the amount of compensation for breach of contract.
61. 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 Single Judge 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.
62. Indeed, the player found employment with the Philippine club United City FC. In accordance
with the pertinent employment contract, the player was entitled to approximately USD
3,039 per month. Therefore, the Single Judge concluded that the player mitigated his
damages in the total amount of USD 12,156, that is, four times USD 3,039.
63. Subsequently, the Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Single Judge however confirmed that the
contract termination was made by the club.
pg. 10
REF. FPSD-13373
64. Accordingly, the Single Judge decided to not award the amount of additional compensation
to the player.
65. 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 USD 8,844 to the player (i.e. USD 21,000 minus USD 12,156), which was to be considered
a reasonable and justified amount of compensation for breach of contract in the present
matter.
66. Lastly, taking into consideration the player’s request as well as the constant practice of the
Single Judge in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 31 October 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
67. 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.
68. 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.
69. 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.
70. 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.
71. 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.
d. Costs
pg. 11
REF. FPSD-13373
72. 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.
73. 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.
74. Lastly, the Single Judge concluded her deliberations by rejecting any other requests for
relief made by any of the parties.
pg. 12
REF. FPSD-13373
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Koffi Marius Ange Bini, is admissible and partially accepted.
2.
The Respondent, Alrustaq, must pay to the Claimant the following amount(s):
USD 6,000 as outstanding remuneration plus 5% interest p.a. as from 31
October2023 until the date of effective payment;
USD 8,844 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 31 October 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-13373
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 | [email protected] | T: +41 (0)43 222 7777
pg. 14