Labour Disputes
Texto da decisão
REF. FPSD-13582
Decision of the
Dispute Resolution Chamber
passed on 2 May 2024
regarding an employment-related dispute concerning
the player Siaja Bagayoko
BY:
Frans DE WEGER (The Netherlands), Chairperson
Oleg ZADUBROVSKIY (Russia), member
Tomislav KASALO (Croatia), member
CLAIMANT:
Siaka Bagayoko, Mali
RESPONDENT:
Alittihad Tripoli SC, Libya
pg. 2
REF. FPSD-13582
I. Facts of the case
1. The player and Alittihad Tripoli SC concluded an employment contract valid as
from 11 August 2022 until 10 August 2024.
2. According to art. 4 of the contract, the entire value of the contract is established in
USD 140,000, to be paid as follows:
Total contract value for the entire period: 140,000 USD
First-year contract value: 60,000 USD
- First-party advance payment at the start of the year: 20,000 USD
- Monthly salary for the first year: 3,335 USD
Second-year contract value: 80,000 USD
- First-party advance payment at the start of the second year: 20,000 USD
- - Monthly salary for ten months of the second year: 6,000 USD
3. On 25 September 2023, the player sent a first default notice requesting the
following:
- Confirm in writing and provide evidence within the next 72 hours that he is still a
player of the club, registered and on the list of players that can play official
matches for the season 2023/2024.
- Send a flight ticket to join the rest of the team in the training camp within the next
48 hours.
- Send a valid visa to join the rest of the team in Egypt within the next 48 hours.
4. On 29 September 2023, sent a second default notice insisting in his previous
requests.
5. On 3 October 2023, the player returned to Libya.
6. On 9 October 2023, the player sent a third default notice indicating the following:
- He had not been allowed to join the team in Egypt.
- The Club had not provided any evidence demonstrating that he was still
registered with the Club.
- The Club had been insisting that he signs a mutual termination agreement, which
the Player categorically kept refusing.
- The player also requested the payment of an outstanding amount of USD 20 000
corresponding to the advance payment that fell due on 15 September 2023 as well
as USD 6 000 corresponding to the monthly salary of September 2023.
- The player gave 72h to confirm the Player’s registration, 48h to send him a visa
and flight tickets for the training camp in Egypt and 10 days to pay the overdue
amount.
7. On 13 October, as stated by the player, “at night” he was summoned to the office
of the Club where three officials of the club were waiting for him and presented
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REF. FPSD-13582
him with a document titled “termination of contract by mutual agreement”.
8. According to the player, officials from the club ordered him to sign the document
otherwise they would evict him from the hotel he was staying in and would
abandon him in Libya
9. The termination agreement stipulated the following:
“Article (2)
The two parties free each other from all legal effects resulting from the termination of
the contract in a comprehensive and final manner
Article (3)
The second party acknowledges that it has received all its financial dues specified in the
contract concluded between them and that it has no other claims.
Article (4)
The implementation of this termination is effective from the date: 12/10/2023.”
10. Simultaneously, the player signed a receipt for the amount of USD 26,000.
11. On 17 October 2023, the player sent a fourth default notice indicating the
following:
- The Club had forced him to sign the termination agreement despite him
reiterating several times that he always wished to honour his contract until its
expiration date.
- -He indicated that he was blackmailed into signing the termination agreement as
otherwise the Club would have evicted him from his hotel room and abandoned
him in Libya.
- He highlighted that had he not signed the termination agreement he would have
been stranded in Libya as the Club would not have delivered an exit visa.
- He insisted that the agreement is not valid and further requested that the Club
pays him the rest of his salaries for the entire season in the amount of USD
54,000 within 10 days.
12. The player concluded a contract with the Iraqi club, Al Qasim SC, valid as from 15
January 2024 until 15 July 2024.
13. The total contract value was established in the amount of USD 15,000.
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REF. FPSD-13582
II. Proceedings before FIFA
14. On 2 February 2024, the player lodged a claim before the FIFA Football Tribunal for
breach of contract without just cause and requested the payment of USD 54,000 as
compensation, plus 5% interest p.a. as from 13 October 2023.
15. The player also requested further USD 27,000 as specificity of sport plus interest, as
well as to not mitigate the compensation.
16. The club verbally informed Mr. Bagayoko before the summer break that they did not
want to continue the employment relationship and asked him to accept a mutual
termination agreement, which he refused.
17. According to the player, the club forced him to sign a termination agreement under
duress, threatening to evict him from his hotel and abandon him in Libya.
18. Therefore, the player argued that the termination agreement is deemed null and void
due to duress and the unbalanced nature of the agreement
19. According to the player, when signing the termination agreement and the cash receipt,
the Player added ‘force’ to his signature to ensure that it was known that he did not
sign the agreement out of his free will.
20. The player argued that the club only provided him with a one-month visa, dated 26
September 2023 (cf. annexe 12 to the claim).
21. In its reply, the club denied pressuring the player and emphasized negotiations
conducted in a cordial manner with a representative from the Libyan Football
Association present.
22. The club presented a player's agent testimony confirming the termination was mutual
and without coercion.
23. Al-Ittihad Club accused the player of making false claims and committing fraud, arguing
that the club did not engage in the actions described.
24. The club further stated that similar terminations with other foreign players were
conducted amicably, without coercion. In particular, the club referred to the following
players:
- Fred Duval Ngoma
- Hocine Laribi
- Imed Louati
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REF. FPSD-13582
-
Saddem Ben Aziza (note: following TMS, this player transferred to Etoile Sp. De
Metlaoui on 5 February 2024. A similar mutual termination agreement is included in
the transfer instruction, in Arabic and including a French translation).
25. The Respondent also considered that the player's acknowledgment of receiving USD
26,000 raises questions about the validity of coercion claims.
26. The club asserted its respect for players and compliance with FIFA regulations, denying
any unilateral contract termination.
27. In his replica, the Claimant argued that the Club did not invite him to training, did not
send him his flight back or the visa, and did not provide any evidence to the contrary.
28. The player stated that the Club tried to make him accept a mutual termination and
booked him a one-way flight.
29. The player considered that the Club used the outstanding salaries as leverage to coerce
him into signing an unbalanced termination letter.
30. The player acknowledged that he received his outstanding salaries, but it does not
mean he agreed to the termination or the conditions.
31. In its duplica, the Respondent insisted in its previous arguments.
32. The Club argued that the player failed to prove allegations that the club coerced him
into signing a mutual termination of the contract.
33. The Club highlighted that the player received USD 26,000 upon contract termination,
thereby undermining claims of coercion.
34. The Club rejected the player's claims about conditions in Libya, and argued that he
encountered normal conditions for participation in football.
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REF. FPSD-13582
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 2 February 2024 and submitted
for decision on 2 May 2024. Taking into account the wording of art. 34 of the May 2024
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.
2.
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 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 Malian player and
a Libyan club.
3.
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 2023edition), and
considering that the present claim was lodged on 2 February 2024, the May 2024 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
4.
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
5.
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
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REF. FPSD-13582
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
6.
The foregoing having been established, the Chamber moved to the substance of the
matter.
7.
In this context, the Chamber acknowledged that this case revolves around an alleged
breach of contract without just cause, with the player asserting that they he was coerced
into signing a mutual termination agreement under duress.
8.
Therefore, the Chamber understood that the main issue at stake is to establish whether
the player was coerced to sign under duress the contested termination agreement.
9.
On this note, the Chamber stated that the standards for establishing duress in legal
proceedings are often elevated, reflecting the gravity of the allegation and its potential
implications. This heightened threshold is rooted in the principle that claims of duress carry
significant weight, potentially resulting in serious consequences such as contract
nullification or monetary compensation. Thus, the Football Tribunal typically requires clear
and convincing evidence to substantiate claims of duress, ensuring that allegations are not
accepted lightly or without sufficient merit.
10. Furthermore, it is crucial for the Football Tribunal to assess the subjective experience of
the player, considering his individual circumstances, vulnerabilities, and state of mind at
the time of the alleged coercion. This entails examining any factors that may have rendered
the particular particularly susceptible to pressure, such as financial distress, emotional
vulnerability, or physical isolation. Moreover, the Chamber court considered the broader
societal, political and cultural context within which the alleged coercion occurred.
11. As a result, to assess the validity of this claim, the Chamber deemed crucial to carefully
examine the evidence presented.
12. The Chamber observed that player contended that club officials threatened eviction from
his hotel and abandonment in Libya if he refused to sign the termination agreement.
13. In this respect, an although no direct evidence was presented by the player, the Chamber
understood that the player’s description of the facts is relatively detailed, thereby
significant concerns regarding the circumstances surrounding the agreement's signing.
14. Moreover, the Chamber observed that, in addition to his signature, the player included in
the termination agreement the word "forcé" (forced in French), suggesting a clear
indication of duress. The Chamber also noted that the club did not provide any comments
as to this issue. As a result, the Chamber could only confirm the player’s narrative that,
indeed, he added said word to the termination agreement. This addition represents a clear
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REF. FPSD-13582
assertion by the player that his agreement to the terms of the agreement was not voluntary
but rather coerced.
15. As a result, the Chamber understood that the inclusion of the word "forcé" alongside the
player's signature in the termination agreement is a significant indication of duress. This
addition serves as a clear marker of the player's state of mind at the time of signing,
conveying their sense of being compelled or forced into accepting the terms outlined in the
agreement
16. In addition, and as to the circumstances surrounding the termination agreement, the
Chamber considered that the political unrest in Libya is an additional circumstance that,
although may not be directly linked to the signing of the termination agreement, it
exacerbates the player's vulnerability and adds weight to his claim of coercion.
17. Significantly, the Chamber also understood that the unequal balance of power between
the player and the club is evident. Indeed, the Chamber also observed that the club's
payment of outstanding salaries during termination may be perceived as an attempt to
further coerce the player into signing the termination agreement in exchange of the
payment of his outstanding remuneration. Indeed, the timing of the payment, coinciding
with the termination of the player's contract, suggests a strategic manoeuvre by the club
to leverage financial pressure against the player. By conditioning the payment of
outstanding remuneration on the player's agreement to terminate the contract, the club
effectively created a coercive environment where the player's financial safety is contingent
upon compliance with their demands.
18. In conclusion, the Chamber considered that the evidence presented strongly suggests the
presence of duress in this case. As a result, the Chamber considered that the club
terminated the contract without just cause and therefore the player is entitled to
compensation.
ii. Consequences
19. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
20. The Chamber turned to the calculation of the amount of compensation payable to the
player by the club in the case at stake. In doing so, the Chamber firstly recapitulated that,
in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be
calculated, in particular and unless otherwise provided for in the contract at the basis of
the dispute, with due consideration for the law of the country concerned, the specificity of
sport and further objective criteria, including in particular, the remuneration and other
benefits due to the player under the existing contract and/or the new contract, the time
remaining on the existing contract up to a maximum of five years, and depending on
whether the contractual breach falls within the protected period.
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REF. FPSD-13582
21. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
22. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
23. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. In particular, the Chamber
noted that the residual value of the contract, from October 2023 until 10 August 2024,
6,000 USD * 9 = USD 54,000 (i.e. the contract entitled the player to 10 monthly salaries for
the second season, out of which one was paid).
24. Consequently, the Chamber concluded that the amount of USD 54,000 serves as the basis
for the determination of the amount of compensation for breach of contract.
25. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
26. Indeed, the player found employment with Al Qasim SC, valid as from 15 January 2024 until
15 July 2024, and the total contract value was established in the amount of USD 15,000.
27. Subsequently, the Chamber 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 Chamber confirmed that the contract
termination took place due to said reason i.e. overdue payables by the club, and therefore
decided that the player shall receive additional compensation.
28. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of USD 39,000 to the player (i.e. 54,000 minus USD 15,000), which was to be considered a
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REF. FPSD-13582
reasonable and justified amount of compensation for breach of contract in the present
matter.
29. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of the date of the termination (i.e. as from the
coerced signature of the termination agreement) until the date of effective payment.
iii. Compliance with monetary decisions
30. 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.
31. 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.
32. Therefore, bearing in mind the above, the DRC 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.
33. 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.
34. 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
35. 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.
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REF. FPSD-13582
36. 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.
37. 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-13582
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Siaka Bagayoko, is partially accepted.
2.
The Respondent, Alittihad Tripoli SC, must pay to the Claimant the following amount:
- USD 39,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 13 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 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-13582
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 14