Labour Disputes
Texto da decisão
REF FPSD-8035
Decision of the
Dispute Resolution Chamber
passed on 2 March 2023
regarding an employment-related dispute concerning the player Moussa
Bagayoko
COMPOSITION:
Frans de Weger (The Netherlands), Chairperson
Peter Lukasek (Slovakia), Member
Laurel Vaurasi (Fiji), Member
CLAIMANT:
Moussa Bagayoko, Mali
Represented by Berlin Sports Law
RESPONDENT:
Football Club Ashdod, Israel
Represented by Omri Applebaum
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REF FPSD-8035
I. Facts of the case
The employment relationship between the player and FC Ashdod
1.
On unspecified date, the Malian player, Moussa Bagayoko (hereinafter: the player or the
Claimant) initiated an employment relationship with the Turkish club, Adanaspor FC.
2.
On 24 September 2020, the Israeli club, Football Club Ashdod (hereinafter: Ashdod or the
Respondent), issued an employment offer (hereinafter: the Ashdod Offer) to hire the player
for four seasons (i.e., from 2020/2021 until 2023/2024). The Ashdod Offer included the
following remuneration to paid to the player:
a.
b.
c.
d.
e.
f.
g.
USD 8,000 net as monthly salary for the 2020/2021 season for 8 months;
USD 8,800 net as monthly salary for the 2021/2022 season for 10 months;
USD 9,800 net as monthly salary for the 2022/2023 season for 10 months;
USD 10,800 net as monthly salary for the 2023/2024 season for 10 months;
Bonuses according to the club’s performance in the local championships;
Furnished apartment, car, and medical insurance; and
“a flight ticket”.
3.
On 30 September 2020, Adanaspor FC, the player, and Ashdod concluded a transfer
agreement by means of which the player’s services were transferred from the former to
the latter against a payment of USD 100,000.
4.
On 4 October 2020, the player and Ashdod entered into an employment contract valid as
from 1 October 2020 until 31 May 2024 (hereinafter: the Employment Contract).
5.
In accordance with clause 6 of the Employment Contract, the player would be entitled to,
in verbis: “8 Payments for food, lodging, travel expenses” of NIS 31,697 totalling NIS 253,580.
6.
Furthermore, clause 6 lit. f) established that amounts included in the Employment
Contract were gross and inter alia the salaries should be paid by the 9th day of the
subsequent month.
7.
Clause 9 of the Employment Contract read as follows: “this agreement is for the 2020/21
season and for 5 additional season with 10% increase each year”.
The temporary transfer to Hapoel Kfar
8.
On 26 August 2021, the Israeli club, Hapoel Kfar Saba FC (hereinafter: Hapoel Kfar)
addressed the player a “non-binding conditional draft offer (subject to the terms below) for a
potential employment agreement for a professional football player” (hereinafter: the Hapoel
Kfar Offer).
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9.
According to the Hapoel Kfar Offer, the player would be registered with such club for the
remainder of the 2021/2022 season and he would receive a monthly salary of USD 8,800
net. The player would also be entitled to benefits in kind.
10. Contextually, it remained undisputed that an agreement was reached between Ashdod
and Hapoel Kfar, therefore the player was indeed loaned during such period.
Furthermore, he played several official matches for Hapoel Kfar’s team between 2
September 2021 and 18 March 2022.
11. Following the loan to Hapoel Kfar, the player’s registration reverted to Ashdod.
The attempted registration of the player with Hapoel Acre and the correspondences
exchanged between the parties
12. On 28 September 2022 (i.e., the last day of the registration window in Israel), the Israeli
club, Hapoel Acre FC (hereinafter: Hapoel Acre) initiated a transfer instruction in the
electronic transfer system of the Israeli Football Association (IFA) for the permanent
transfer of the services of the player.
13. It stood undisputed that:
•
the abovementioned transfer was confirmed by the three parties involved: Hapoel Acre
FC, the player, and Ashdod;
•
Hapoel Acre FC and the player agreed upon a new employment contract (hereinafter:
the Hapoel Contract);
•
nevertheless, the transfer instruction was rejected by IFA because the pertinent
documentation was not timely uploaded.
14. An undated and unsigned specimen of the Hapoel Contract was submitted by the player
and included the following conditions precent:
“14. Conditions precedent
This Agreement shall come into effect upon the occurrence of the below specified events,
cumulatively:
14.1 The Player's agreement was approved by the budget control authority.
14.2 The Player was transferred to the Team from Ashdod FC and registered in it. For
the avoidance of doubt, fulfilment of each of the conditions specified above is required
to exist in each and every one of the option periods, as a condition to their coming into
effect”.
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15. On 29 September 2022, the player sent Ashdod a default notice by means of which he
acknowledged that he was being prevented from training and entering the club’s facilities,
as well as was being threatened and disrespected by its representatives. Furthermore,
the player argued that Ashdod was forcing him to leave his apartment and it failed to pay
his salary of August 2022. As such, he requested Ashdod to immediately refrain from
adopting such abusive behavior towards him and informed that in case no reaction was
received within the following 10 days, he would terminate the Employment Contract in
line with art. 14 of the FIFA Regulations on the Status and Transfer of Players (RSTP).
16. On 10 October 2022, the player put Ashdod in default for the second time. In doing so, he
pointed out that he was still not being allowed to join the trainings and claimed that his
salaries of August and September 2022 were outstanding. He granted the club with a 15day’s deadline to remedy the breach.
17. On 26 October 2022, the player notified Ashdod of the termination of their employment
relationship due to overdue payables and in line with art. 14bis of the FIFA RSTP.
The new employment relationship of the player with Carabobo FC
18. On 25 November 2022, the player signed a new employment agreement with the
Venezuelan club, Carabobo FC, valid as from 1 January 2023 until 31 December 2024.
Accordingly, the player would be entitled to a monthly salary of USD 4,500 net.
II. Proceedings before FIFA
19. On 28 October 2022, 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
20. According to the player, during the 2022/2023 season he was entitled to receive 10
salaries of USD 9,800 each from August 2022 until May 2023 plus 8 instalments of NIS
31,697.50 as the allowance for his expenses.
21. Furthermore, after his return from holidays in August 2022, the player held that he was
disrespected by Ashdod, requested to leave his apartment, and prevented from joining
the training sessions. Besides such abusive behaviour, which in the player’s view would
already amount to just cause under art. 14 of the FIFA RSTP, he alleged that Ashdod also
failed to pay his salaries for August and September 2022 (i.e., USD 19,600 being USD 9,800
for each month).
22. In light of the above, the player stressed that the requirements of art. 14bis of the FIFA
RSTP were met, hence that the Employment Contract was terminated with just cause.
Therefore, he requested to be awarded the following amounts:
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a.
USD 19,600 net plus NIS 63,395 as outstanding remuneration corresponding to
his salaries and allowances for the months of August and September 2022, plus
5% interest as from the respective due dates; and
b.
USD 186,400 net plus NIS 570,555 as compensation for breach of contract,
corresponding to the residual value of the Employment Contract (i.e., his salaries
and allowances from October 2022 until May 2024), plus 5% interest as from 26
October 2022.
b. Reply of Ashdod
23. On 27 November 2022, Ashdod filed its reply to the claim of the player and strongly
opposed to the player’s allegations as to the date and justice of the termination of the
Employment Contract.
24. In its reply, Ashdod explained that around August 2021 the player was loaned to Hapoel
Kfar and did only return to its premises in the beginning of season 2022/2023. It
furthermore alleged that following the loan the player was not fully recovered from his
previous injuries and was dissatisfied with his status at the club, for that he tried to force
the termination of the Employment Contract and, without success, started to look for
another club.
25. Ashdod underlined that on or around 28 September 2022, the player in fact signed a new
employment agreement with Hapoel Acre (i.e., the Hapoel Contract) and the respective
transfer instruction was included in IFA’s system, as well as it was confirmed by all the
three parties involved. Nevertheless, the registration could not be completed because of
administrative issues, namely because the documentation uploaded by Hapoel Acre was
incomplete and it could not be provided before the closure of the registration window.
26. Given the above, Ashdod argued that the Employment Contract was not terminated by
the player with just cause on 26 October 2022, but rather upon the signature by the
relevant parties of a transfer agreement / new employment agreement bounding the
player and Hapoel Acre and covering the same period. As such, “any event that may have
happened after the signing of the agreement between the Claimant and his new club - whether
it is the failure to complete the registration or whether it is a subjective decision by one of the
parties to make a U-turn and not to execute the agreement - does not change the legal
consequences of such agreement”. Ashdod moreover referred to CAS 2019/A/6594 SASP
Football de Nantes v. Cardiff City Football Club (the Sala Case) in support of his
argumentation and argued that the IFA’s refusal to register the player with Hapoel Acre
could not be held against it as does not prevent the employment agreement signed
between such parties to enter into force.
27. Consequently, Ashdod maintained that the Employment Contract was terminated by
mutual consent of the parties (or without just cause by the player) insofar as the player
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could not have entered into two simultaneous contracts (cf. art. 18, par. 5 of the FIFA
RSTP). Furthermore, Ashdod suggested that in case the player intended to receive
compensation, he should seek relief against Hapoel Acre instead.
28. In parallel, Ashdod also disputed the player’s position as to the termination of the
Employment Contract per se. Accordingly, it explained that:
•
The player did not advance any proof regarding any potential abusive behaviour
by Ashdod. Specifically, despite referring to threats by its representatives, the
player did not specify the whereabouts of such accusations as well as did not
provide any documentary evidence in connection thereto;
•
The player’s salaries for August and September 2020 were paid on 27 October
2022 and it had “justifiable reasons” to delay the payments. Furthermore, he
claimed to be entitled to about USD 185,000 more – corroborating that he was
acting in bad faith; and
•
Art. 14bis of the FIFA RSTP is not applicable in any scenario, because (i) at the
time the default notice was sent by the player, the salary of September 2022
was still not overdue because it should be paid until 20 October 2022; and (ii)
Ashdod had a prima facie basis to delay the payments, namely the player’s
refusal to cooperate in “filing an insurance claim that would cover his salaries
during his incapacity due to the fact he did not recover from his injury” suffered
during the loan to Hapoel Kfar.
29. Therefore, Ashdod insisted that no just cause existed for the termination of the
Employment Contract, hence no compensation should be granted.
30. Alternatively, it argued that the quantum claimed by the player should be significantly
reduced, given that:
•
the player’s salaries of August and September 2022 were paid, hence there was
no outstanding remuneration;
•
the player should not be entitled to any compensation for the period between
October 2022 and the end of the 2022/2023 season due to his new employment
agreement with Hapoel Acre or, alternatively, he should only be awarded the
mitigated compensation, if applicable;
•
no compensation was due for the 2023/2024 season “since the contract was
terminated by the player and without just cause or at most by mutual consent of the
parties” or, alternatively, any compensation should also be mitigated;
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•
the player is not entitled to any payments for “food, lodging and expenses”. On
the contrary, it constitutes “a wrongful attempt for unjust enrichment” because
the amounts included in the Employment Contract were indeed that same
amounts stipulated in the Offer in US Dollars however converted to national
currency (NIS). Furthermore, the expenses were already covered by the club in
kind, and were never claimed by the player throughout the two previous years
of their contractual relationship; and
•
no interests could be claimed because there was no outstanding remuneration
and they could not be applied over amounts that had not fallen due yet (i.e., the
compensation).
31. Ashdod’s requests for relief were as follows, in verbis:
“On the primary basis:
102.1.1. To order the Claimant to enclose any employment contract (and/or and other
document) he signed with Hapoel Acre F.C;
102.1.2. To establish that the Claimant terminated the Agreement upon the date he
signed an employment agreement with Hapoel Acre F.C;
102.1.3. To declare that [the Employment Contract] was terminated by the Claimant
without just cause or at most by the parties' mutual consent;
102.1.4. To declare the Respondent bears no outstanding debts towards the Claimant;
102.1.5. And accordingly – to dismiss the Claimant's Claim in its entirety.
102.2. On the subsidiary basis:
102.2.1. To establish that the Respondent did not breach the [the Employment
Contract] and certainly not in a manner that provided the Claimant with just cause to
terminate [the Employment Contract];
102.2.2. To declare the Respondent bears no outstanding debts towards the Claimant;
102.2.3. And accordingly – to dismiss the Claimant's Claim in its entirety.
102.3. Alternatively to the subsidiary basis: in case the DRC shall decide that the
Claimant terminated the Agreement with just cause and that he is entitled to any
compensation from the Respondent, then the DRC is requested:
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102.3.1. To deduct from the awarded compensation the full value of the Player's
agreement with Hapoel Acre;
102.3.2. To deduct from the compensation the full value of the Claimant's employment
agreement with Hapoel Acre (including salaries, bonuses and any other benefit);
102.3.3. To deduct from the compensation for the 2023/24 season, the Claimant's
potential salary for such season and decide that it is no less than 8,800 USD net per
month;
Or – to suspend the payment of compensation for the 2023/24 season until May 2024
when it will become clear if the Claimant mitigated his damages and what amounts
should be deducted from the compensation;
102.3.4. To decide that in any case, the Claimant is not entitled to interests;
102.3.5. And - to refrain from imposing any sanctions against the Respondent.
102.4. In any event: to Order the Claimant to reimburse the Respondent all and any
amount of legal fees, and any other costs and expenses that incurred to the Respondent
in these proceedings”.
c. Rejoinder of the player
32. On 16 December 2022, the player filed his rejoinder on this matter and reiterated that
the Employment Contract was terminated on 26 October 2022 with just cause due to
overdue payables. Furthermore, the player referred to audios recording of the abusive
behaviour of Ashdod towards him.
33. Regarding the transfer to Hapoel Acre, the player acknowledged having accepted the
conditions but highlighted that Ashdod did not prove that such transfer did not go
through due Hapoel Acre’s fault. What is more, he submitted an undated copy of the
Hapoel Contravt and highlighted that it was conditioned to the completion of the transfer
/ registration with Ashdod.
34. Furthermore, the player also filed a mutual declaration co-signed by Hapoel Acre stating
that they were interested in starting an employment relationship, however the transfer
could not be concluded within the appropriate deadline. Consequently, the “contract
attempted to be concluded by the parties was considered null and void, pursuant to clause
14.2 of the contract, and no contractual relationship was entered into by the parties after all”
and the player remained bounded to Ashdod. The player further argued in this respect
that, as the agreement with Hapoel Acre included conditions precent that were not
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fulfilled, he did not enter into a valid contractual relationship with such club, hence art.
18, par 4 and 5 of the FIFA RSTP were not applicable.
35. Subsequently, and having established that no termination took place as a result of his
unfruitful transfer to Hapoel Acre, the player reiterated his argumentation as to the
validity and breach of the Employment Contract by Ashdod. In particular, he underlined
that the salaries should have been paid until the 9th of each subsequent month, hence
more than two salaries were outstanding at the time the default notice was sent. The
player additionally challenged Ashdod’s allegations as to the insurance company and inter
alia indicated that no evidence was produced in this regard.
36. As to the quantum claimed, the player stressed that an amount of NIS 62,188 (USD 17,644)
was received from Ashdod on 28 October 2022, i.e., one day after the termination of the
Employment Contract, and was not credited until the claim at hand was lodged. On the
other hand, Ashdod failed to prove its allegations that the remuneration due to the player
was miswritten in the Employment Contract and it was an attempt to reduce his
outstanding payments.
37. In conclusion, the amended requests for relief of the player were as follows:
“a) Accepts FIFA’s jurisdiction to rule on the present matter;
b) Declares that the Claimant had just cause to terminate the Contract, holding the
Respondent liable for such termination without just cause;
c) Orders the Respondent to pay to the Claimant USD 1,956 (one thousand nine
hundred and fifty-six US Dollars) net as outstanding remuneration;
i. Orders the Respondent to pay interest at a rate 5% p.a. on the amount
of USD 9,800 as of 09 September 2022, until the date of the effective
payment;
ii. Orders the Respondent to pay interest at a rate 5% p.a. on the amount
of USD 9,800 as of 09 October 2022, until the date of the effective
payment
d) Orders the Respondent to pay NIS 63,395 (sixty-three thousand three hundred
and ninety-five NIS) as outstanding payments for food, lodging and travel expenses;
i. Orders the Respondent to pay interest at a rate 5% p.a. on the amount of
NIS 31,697.50 as of 09 September 2022, until the date of the effective
payment;
ii. Orders the Respondent to pay interest at a rate 5% p.a. on the amount
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of NIS 31,697.50 as of 09 October 2022, until the date of the effective
payment;
e) Orders the Respondent to pay to the Claimant USD 186,400 (one hundred and
eighty-six thousand four hundred US Dollars)net as compensation for breach of the
Contract, plus 5% interest p.a.as from 26 October 2022 until the date of effective
payment;
f) Orders the Respondent to pay to the Claimant NIS 570,555 (five hundred and
seventy thousand five hundred and fifty-five NIS) as compensation for breach of the
Contract, plus 5% interest p.a.as from 26 October 2022 until the date of effective
payment;
g) Sanctions the Respondent in accordance with Arts.12bis, par. 4, and 17, par. 4, of
the RSTP”.
d. Final comments of Ashdod
38. On 16 January 2023, Ashdod submitted its final comments on this matter.
39. According to Ashdod, the player confirmed having signed an employment agreement with
Hapoel Acre, entailing that the contractual relationship sub judice (i.e., between the player
and Ashdod) was terminated on the same date. Therefore, Ashdod (i) reiterated that the
failure to complete the transfer / registration of the player could not be held against it;
and maintained that (ii) the mutual declaration by the player Hapoel Acre is devoid of legal
effect; and (iii) it was not a party to the agreement between the player and Hapoel Acre,
therefore it has not accepted any condition precedent.
40. In continuation, Ashdod once again challenged the allegations of the player as to having
adopted any harmful behaviour. On the contrary, Ashdod filed copy of the rehab program
implemented with the player to recover his physical condition after the injuries suffered
during the loan to Hapoel Kfar. Ashdod also pointed out that the player did not dispute
the fact that he remained in his apartment until November 2022 and only left on his own
initiative. Likewise, it argued that the audios filed by the player were not conclusive nor
capable of corroborate the identity of the parties involved.
41. Thereafter, Ashdod asserted that the player’s notices were not ignored, but were under
discussion with his agent. Likewise, it underlined that the player returned to the club in
August 2022 and the letters were only sent in October – coincidently one day after the
unsuccessful transfer to Hapoel Acre.
42. Finally, as to the quantum in dispute, Ashdod stressed that the player:
•
acknowledged that he did not claim any additional amount for the duration
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of the Employment Contract;
•
did not provide any explanation as to why he would be entitled to the double
of the amounts paid each month; and
•
acknowledged receipt of NIS 62,188 on 27 October 2022, which amounts to
USD 18,200 – hence the salaries of August and September 2022 were fully
paid.
43. The amended requests for relief of Ashdod were as follows (i.e., only concerning the
‘alternatively to the subsidiary basis’ section as the rest remained unchanged):
“36.3 Alternatively to the subsidiary basis: in case the DRC shall decide that the
Claimant terminated [the Employment Contract] with just cause and that he is
entitled to any compensation from the Respondent, then the DRC is requested:
36.3.1. To deduct from the awarded compensation the full value of the Player's
agreement with Hapoel Acre (4,500 EUR X 8 + 3,500 EUR = 39,500 EUR).
36.3.2. To deduct from the compensation for the 2023/24 season, the Claimant's
potential salary for such season and decide that it is no less than 8,800 USD net per
month;
Or – to suspend the payment of compensation for the 2023/24 season until May
2024 when it will become clear if the Claimant mitigated his damages and what
amounts should be deducted from the compensation;
36.3.3. To decide that in any case, the Claimant is not entitled to interests;
36.3.4. And -to refrain from imposing any sanctions against the Respondent”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
44. 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 28 October 2022 and
submitted for decision on 2 March 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.
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45. 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 par.
1 lit. b) of the FIFA RSTP (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 a Malian player and an Israeli club.
46. 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 (October 2022 edition),
and considering that the present claim was lodged on 28 October 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
47. 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
48. 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
49. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that it pertains to a claim for outstanding remuneration
and compensation for breach of contract lodged by the player against Ashdod.
50. As a departure point, the Chamber acknowledged that, despite the long submissions and
the complex timeline construed by the parties to support their position, the underlying
question to be answered is when and by whom was the Employment Contract
terminated, as well as the consequences that follow.
51. On one hand, the player claims to have terminated the Employment Contract on 26
October 2022 based on overdue payables. On the other hand, Ashdod argues that their
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contractual relationship was already over due to the fact that the player entered into a
new employment agreement with Hapoel Acre for the same period as the one previously
maintained between the contending parties.
52. In view of this dissent between the parties, the DRC noted that the main relevant events
to this case could be summarized as follows:
Date
24 September 2020
4 October 2020
28 September 2022
29 September 2022
10 October 2022
26 October 2022
Event
Issuance of the Ashdod Offer
Signature of the Employment Contract valid until 2023/2024
season
Attempted registration of the player with Hapoel Acre through
the IFA’s transfer system. In parallel, signature of the Hapoel
Contract on or around the same date
First default notice of the player
Second default notice of the player
Termination letter by the player
53. Against this background, the Chamber established that the core element of the dispute
is precisely whether the signature of an agreement with Hapoel Acre and the attempted
transfer / registration of the player with such club could be considered as a de facto
termination of the Employment Contract.
54. While assessing such issue, the DRC recalled the wording of art. 18 par. 5 of the
Regulations, which establishes as following: “If a professional enters into more than one
contract covering the same period, the provisions set forth in Chapter IV shall apply.”
55. In addition, the Chamber also considered that the Commentary to the Regulations and
Status and Transfer of Players (2021 edition) sheds the following light on this topic:
“If a professional player signs more than one contract for a specific period, they will
only be able to honour one of them; they will have to decide which club they will play
for during the period concerned. This means they will inevitably have to breach the
contract signed with the other club. De facto, they will be terminating the latter
contract, potentially before execution even begins, and the provisions in
articles 13-17 will apply. This self-evident conclusion has been confirmed by CAS”
(p. 202; emphasis added).
56. On this note, the DRC outlined that: (i) all the three involved parties, i.e., the player,
Ashdod and Hapoel Acre unequivocally consented to the player’s transfer from Ashdod
to Hapoel Acre on 28 September 2022; (ii) it remained equally undisputed that such
transfer could not be concluded exclusively due to administrative issues; and (ii) in any
event, the player expressly confirmed that he signed an employment agreement with
Hapoel Acre (i.e., the Hapoel Contract).
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57. Having established that the player not only gave his consent to initiate another
employment relationship with a second club for an overlapping period but also effectively
adopted proactive steps to do so – including signing a contract and accepting the
registration in IFA’s transfer system – the members of the Chamber were satisfied with
the conclusion that, as put forward by Ashdod, the Employment Contract was de facto
terminated by mutual agreement between the parties.
58. In other words, the DRC was of the opinion that, in the moment Ashdod, Hapoel Acre and
the player formally agreed upon his transfer and the new conditions of the employment
agreement bounding the player to Hapoel Acre, the continuity of the execution of the
Employment Contract became impossible (cf. art. 18, par. 5 of the Regulations), hence it
was automatically and tacitly terminated.
59. Furthermore, the Chamber observed that there is not any convincing evidence on file that
such termination involved any type of abusive behaviour by any of the parties or, in
particular, that neither the player nor Ashdod were forced to agreed upon the new
employment, entailing that the arrangement between the parties is to be interpreted as
a result of mutual agreement. This is also regardless of the signature of an official
termination agreement, which would likely only aim at establishing any residual financial
liability from the parties towards each other.
60. In addition to the above, the DRC was also observant of the player’s position regarding
the non-fulfilment of the conditions precedent included in the employment agreement
with Hapoel Acre. Nevertheless, the Chamber deemed that such argumentation by the
player could not succeed because in line with the contents of art. 18 par. 4 of the
Regulations, as well as with its solid jurisprudence, the validity of an employment contract
cannot be made conditional upon the execution of (administrative) formalities, such as,
but not limited to, the registration procedure in connection with the international transfer
of a player, which are of the sole responsibility of the club(s) and upon which a player has
no influence. Therefore, as the new club (i.e., Hapoel Acre) was supposedly interested in
acquiring the rights of the player and in benefiting from his services, it is also expected to
act accordingly and execute the administrative formalities in view of obtaining, for
instance, the player’s registration with the IFA. Consequently, the lack of registration of
such agreement is irrelevant in determining if it was a valid and binding document.
61. All in all, the DRC’s conclusions in the case at hand can be summarized as follows:
•
the employment agreement undisputedly signed between the player and
Hapoel Acre on or around 28 September 2022 was valid and binding to the
parties regardless of the fulfillment of the conditions precedent therein
included;
•
by reaching the aforementioned agreement and adopting proactive steps
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for the transfer of the player, the parties made the continuity of the
Employment Contract impossible (cf. art. 18 par. 5 of the FIFA RSTP), hence
it was de facto terminated by mutual consent on the same date;
•
consequently, the default notices and the termination letter sent by the
player in September and October 2022 were moot as the Employment
Contract was already de facto terminated;
•
therefore, no compensation for breach of contract shall be awarded.
62. The aforementioned is nevertheless without prejudice of the player’s entitlement, in any
scenario, to any outstanding remuneration owed by Ashdod by 29 September 2022.
63. At this point, the DRC took due consideration that the player requested to be awarded
USD 1,956 plus NIS 63,395 as outstanding remuneration corresponding to the months of
August and September 2022 plus interest. In parallel, the Chamber was also mindful of
Ashdod’s position according to which: (i) the player requested to be awarded double the
remuneration effectively due under the Employment Contract; (ii) its breach was fully
cured on 27 October 2022, when it paid NIS 62,188 to the player; and (iii) no interests
were applicable because of the player’s behaviour and the particular factual framework
of the case.
64. In this respect, the Chamber initially turned its attention to the documentation on file in
order to establish the monthly remuneration that was effectively due to the player for the
months of August and September 2022. In doing so, the DRC noted that the Employment
Contract did only refer to the entitlement of the player to a monthly remuneration of NIS
31,697.50, to be increased by 10% for each subsequent season. Moreover, the Chamber
acknowledged that, when converted to USD, the NIS 31,697.50 included in the
Employment Contract appears to match the remuneration mentioned in the Ashdod
Offer, therefore corroborating Ashdod’s position on this topic.
65. As such, the Chamber stressed that, as the player was the one challenging the amount
effectively included in the Employment Contract, he bore the burden of proving, by the
necessary means, that he was in fact entitled to the amounts sought (cf. art. 13, par. 5 of
the Regulations). The DRC wished to clarify, in this respect, that such burden could be
easily met by the player by providing any financial documentation capable of
demonstrating the amounts earned/paid for the previous months and/or clear
agreement by between the parties with clear reference to the remuneration owed.
66. Nevertheless, in the absence of any such documentation and bearing in mind the
contents of the Employment Contract, the DRC concluded that the player could not
support his position to a comfortable satisfaction degree. On the contrary, the Chamber
was even more persuaded to follow Ashdod’s argumentation after considering that (i) by
admitting the player’s position, the allowance owed by Ashdod would be higher than his
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REF FPSD-8035
salary, which did not appear to be reasonable considering the terms of the Ashdod Offer;
and (ii) the player contradicted himself by claiming that the salaries should be payable by
the 9th day of each subsequent month as stipulated in art. 6, lit. f) of the Employment
Contract, which refers to the payment of “monthly wages” and not the allowance.
67. It followed from the above, in the DRC’s view, that the player should be initially entitled to
a total monthly remuneration of NIS 31,697.50 for the first year of the Employment
Contract, to be increased by 10% every season. Consequently, during the 2022/2023
season, the player would be entitled to NIS 38,353.97 as monthly salary (i.e., NIS 31,697.50
plus 10% plus 10%).
68. Furthermore, the player acknowledged receipt of NIS 62,188 on 27 October 2022,
therefore arriving at a balance of NIS 14,519.94, which the Chamber decided to award to
the player on the basis of the principle of pacta sunt servanda.
69. Finally, in line with the player’s requests for relief and its standard practice on the matter,
the Chamber stressed that the player should be entitled to interest over the outstanding
amount as from the due dates stipulated in art. 6, lit. F) of the Employment Contract (i.e.,
as from the 10th day of the each) until the date of effective payment (or, if applicable) late
payment), as follows:
a. NIS 14,519.94 plus 5% interest p.a. as from 10 October 2022 until the date of
effective payment;
b. 5% interest p.a. over NIS 38,353.97 as from 10 September 2022 until 27 October
2022; and
c. 5% interest p.a. over NIS 23,834.03 as from 10 October 2022 until 27 October
2022.
70. For the sake of completeness, the Chamber established that Ashdod’s argumentation
against such entitlement should be rejected because it failed to provide any
documentation regarding the matter of the health insurance and no prima facie
justification for the non-payment existed since the player’s entitlement to the salaries of
August and September 2022 was never under discussion and the conflict involving Hapoel
Acre did only take place in October 2022.
71. In conclusion, the Chamber stated that claim of the player should be partially accepted.
ii. Compliance with monetary decisions
72. 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
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REF FPSD-8035
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.
73. 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.
74. Therefore, bearing in mind the above, the DRC decided that the Ashdod 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.
75. Ashdod 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.
76. 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
77. 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.
78. 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.
79. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF FPSD-8035
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Moussa Bagayoko, is partially accepted.
2.
The Respondent, Football Club Ashdod, has to pay to the Claimant the following
amount(s):
- NIS 14,519.94 as outstanding remuneration plus 5% interest p.a. as from 10 October
2022 until the date of effective payment;
- 5% interest p.a. over NIS 38,353.97 as from 10 September 2022 until 27 October 2022;
- 5% interest p.a. over NIS 23,834.03 as from 10 October 2022 until 27 October 2022.
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
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REF FPSD-8035
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
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