Labour Disputes
Texto da decisão
REF. FPSD-13859
Decision of the
Dispute Resolution Chamber
passed on 2 May 2024
regarding an employment-related dispute concerning
the player Abdoulaye Bakayoko
BY:
Frans DE WEGER (The Netherlands), Chairperson
Tomislav KASALO (Croatia), member
Oleg ZADUBROVSKIY (Russia), member
CLAIMANT:
Abdoulaye Bakayoko, Côte d'Ivoire
Represented by Milan Caric
RESPONDENT:
Muaither SC, Qatar
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REF. FPSD-13859
I. Facts of the case
1.
On 16 September 2023, the Ivorian player Abdoulaye Bakayoko (hereinafter the Claimant
or the Player) and the Qatari club Muaither SC (hereinafter the Respondent or the Club)
concluded the first employment agreement (hereinafter the First Employment Agreement),
valid as from 1 September 2023 until 30 June 2026.
2.
On 1 November 2023, the Claimant and the Respondent (jointly referred to as the Parties)
renegotiated the First Employment Agreement and signed the second employment
agreement (hereinafter the Second Employment Agreement), valid as from 1 November 2023
until 30 June 2026.
3.
In accordance with various schedules of the Second Employment Agreement, the Parties
agreed upon the following financial conditions:
Schedule 1
Total value of the Contract: USD 80,000, payable in monthly instalments of USD 10,000:
Other allowances: car, accommodation, amounts understood as net (“Any taxes, social
costs, contributions, or any other amounts the Player may need to pay in the country of his
residence, or any other country arc to be borne by the Player and the Club insofar shall not
be obliged to pay any additional amounts to the player as those agreed upon in this
Contract.”)
Schedule 2
Total value of the Contract: USD 120,000, payable in monthly instalments of USD 10,000
Other allowances: car, accommodation, amounts understood as net (“Any taxes, social
costs, contributions, or any other amounts the Player may need to pay in the country of his
residence, or any other country arc to be borne by the Player and the Club insofar shall not
be obliged to pay any additional amounts to the player as those agreed upon in this
Contract.”)
Schedule 3
Total value of the Contract: USD 120,000, payable in monthly instalments of USD 10,000
Other allowances: car, accommodation, amounts understood as net (“Any taxes, social
costs, contributions, or any other amounts the Player may need to pay in the country of his
residence, or any other country arc to be borne by the Player and the Club insofar shall not
be obliged to pay any additional amounts to the player as those agreed upon in this
Contract.”)
4.
In accordance Article X of the Second Employment Agreement, the Parties agreed upon the
following:
“1. QFA/QSLM regulations governing this matter and, where applicable, FIFA regulations in
force from time to time apply.
2. This Contract may be terminated before its expiry by mutual agreement.
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REF. FPSD-13859
3. This Contract may be terminated by either party, without consequences for the terminating
party, where there exists just cause at the time of the contract termination.
4. If the Club terminates the Contract without having just cause, the Club shall pay to the
Player compensation two months.
5. If the Player terminates the Contract without having just cause, the Player shall pay to the
Club compensation 5,000,000 USD.
6. The Parties expressly agree that the compensation amounts stipulated under the provisions
of paragraphs 4 and 5 of this Article X above, are fair and respect the principles of parity and
reciprocity of the Parties in light of the overall circumstances related to the Contract's
conclusion and execution.”
5.
In accordance Article XIV of the Second Employment Agreement, the Parties agreed upon
the following applicable law and jurisdiction:
“1. This Contract is governed firstly by the QFA/QSLM regulations and subsidiary by the Laws
of the State of Qatar as well as AFC and FIFA Regulations.
2. Any dispute between the Club and the Player arisen in connection with the present Contract
shall be submitted to the exclusive jurisdiction of the Qatar Sports Arbitration Tribunal (QSAT)
and shall be settled in accordance with the arbitration rules of the QSAT.
3. All the decisions issued by the Qatar Sports Arbitration Authority shall be final, binding and
not subject to appeal before the Court of Arbitration for Sport in Lausanne (Switzerland).”
6.
On 25 November 2023, the Claimant suffered an injury during a match day. The Claimant
pertained that said injury was not healed to date, i.e. the Claimant attached medical report
dated 15 January 2024.
7.
On 24 December 2023, the Claimant received his outstanding salaries in the amount of
QAR 36,500 (i.e. approx. USD 10,000).
8.
On 29 January 2024, the Claimant received his outstanding salaries in the amount of
QAR 73,000 (i.e. approx. USD 20,000).
9.
On the same day, later in the afternoon, the Respondent allegedly summoned the Claimant
and presented him “Clearance Termination Agreement”, which the latter refused to sign.
10. Equally on the same day, later in the evening, the Respondent unilaterally terminated the
Second Employment Agreement:
“After the best regards,
we have notified you of the termination of the contract with you for the contract concluded
between us on 01/11/2023 and ending on 30/06/2026, effective on Monday 29/01/2024, with
our commitment to bear the cause, the Club shall pay to the Player compensation two
monthly salaries, in the contract between us and this for your information.”
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REF. FPSD-13859
11. On 30 January 2024, the Claimant sent an email to the Respondent, requesting clarification
if the email came from the Respondent and requested confirmation as to the termination.
12. Allegedly, “the Respondent’s President and other employees began to call the Claimant and his
Agent to make dubious offers to the Claimant so that the Claimant would not claim any
compensation for breach of contract”.
13. On 8 February 2024, the Claimant flew back from Doha to Paris.
14. On 15 February 2024, the Claimant (via his legal representative) sent a default notice to the
Respondent, requesting the amount of USD 5,300,000 net due to the unilateral termination
of the contract and granted the latter a deadline to comply with its contractual obligations.
15. On 25 February 2024, the Respondent sent the following letter to the Claimant (without the
Claimant’s legal representative in copy):
“(…) First of all with reference to the corresponds of your legal representative dated on
15/02/2024, Muaither club football club rejects in full the content of the letter said.
On that basis We are sending This letter to you to present express good faith and a desire to
evacuate any misunderstanding in the contractual relationship that exists between us and
you.
Therefore, we as the administration of Muaither Club invites you to attend the club's
headquarters accompanied by your honorable father and your agent, Mr. Ahmed Ibrahim
Hussein - in order to discuss the legal frameworks related to the contract between us and you
also we will bear all expenses for travel tickets and stay for the period three days in Doha,
Qatar for your honorable father and the agent.
Your failure to respond to this invitation will be understood as a rejection to find consensual
solutions, and we reserve all our rights.
Please inform us within 24 hours upon present of this letter the travel details for starting
procedures of booking.
Accordingly, we are sending this letter for urgently your presence in a period of three days
from the date of receiving this letter for your interest as a professional player of our club.”
16. The Player did not sign a new employment contract.
II. Proceedings before FIFA
17. On 28 February 2024, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
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a. Position of the Claimant
18. The requests for relief of the Claimant, were the following:
“(1) The Respondent to pay to the Claimant USD 5,000,000.00 (five million US dollars) as penalty
clause following the termination of the contract without just cause;
Subsidiarily, The Respondent to pay to the Claimant USD 300,000.00 (three hundred thousand
US dollars) as compensation for breach following the termination of the contract without just
cause;
Very subsidiarily, In the event that the Claimant signs a contract with a new club during the
FIFA proceedings:
The Respondent to pay to the USD 300,000.00 (three hundred thousand US dollars) as
compensation for breach following the termination of the contract without just cause, minus
mitigation plus additional compensation of USD 60,000 (sixty thousand US dollars);
In any event,
(2) The Respondent to pay to the Claimant 5% interest per annum on said amount as from
29 January 2024 until the date of effective payment;
(3) The Respondent to bear all the costs of the proceedings, if any;
(4) Sporting sanctions onto the Respondent.“
19. First of all, the Claimant argued that despite Article XIV para. 2 of the Second Employment
Agreement, “FIFA shall still have competence to hear the present dispute, as the QSAT does not
fulfil the minimum standards as per FIFA Circular No. 1010 of 20 December 2005, i.e respecting
the principle of equal representation of players and clubs and being considered an independent
arbitration tribunal that guarantees fair proceedings.“
20. In this respect, and furthermore, the Claimant pointed to Article 63 para. 2 of the Qatar
Football Association Statutes and argues that the QFA/QSAT does not have jurisdiction over
an international dispute:
“2. The QFA and/or the QSAT shall have jurisdiction on disputes between parties belonging to
the QFA at the time that the dispute arose (internal national disputes). FIFA shall have
jurisdiction on disputes between parties belonging to different National Associations and/or
Confederations at the time the dispute arose (international disputes).”
21. On the substance, the Claimant argued that the Respondent terminated the contract
without just cause based on art. 14 para. 2 of the Regulations and in line with the DRC and
CAS jurisprudence.
22. The Claimant added that the termination on 29 January 2024 occurred while the Player was
injured and that the Respondent “tried to get rid of him first by forcing him to sign a mutual
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termination agreement that the Player refused to sign, and then by simply terminating their
contractual relationship”.
23. In view of the above, the Claimant requested compensation as follows:
(i) Disregarding Article X para. 4 of the Second Employment Agreement as the said
provision is “not reciprocal” and ordering the Respondent to pay USD 5,000,0000 as
the Claimant deems “himself entitled to the amount foreseen in Article X par. 5, as it was
drafted by the Club, which shall thus assume the consequences of such penalty clause the
Club intended unilaterally impose onto the Player. “
Subsidiarily
(ii) USD 300,000 as a residual value of the contract and, in case of mitigation,
USD 60,000 as an additional compensation for the egregious circumstances:
“For the 2023/2024 season: USD 60,000.00 corresponding to the salaries from January to
June 2024 (the January salary only became due after the Contract was terminated and
thus, is part of the residual value of the Contract)
For the 2024/2025 season: USD 120,000.00
For the 2025/2026 season: USD 120,000.00
TOTAL: USD 300,000.00”
b. Position of the Respondent
24. Despite being invited to do so, the Respondent failed to reply to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
25. 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 February 2024 and
submitted for decision on 2 May 2024. Taking into account the wording of art. 34 of the
May 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.
26. 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 February 2024 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an Ivorian player
and a Qatari club.
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27. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players February 2024 edition), and
considering that the present claim was lodged on 28 February 2024, the February 2024
edition of said regulations (hereinafter the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
28. 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
29. 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
30. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that this is a claim against a Player against a Club
concerning a termination of the employment relationship. The Chamber noted that it was
the Respondent who terminated the employment contract per 29 January 2024.
31. In this context, the Chamber acknowledged that its task was to determine if the contract
was terminated with just cause and, in this respect, the DRC recalled the content of art. 14
of the Regulations, which provides that “a contract may be terminated by either party without
consequences of any kind (either payment of compensation or imposition of sporting sanctions)
where there is just cause”, whereas the definition of just cause and whether just cause exists
shall be established in accordance with the merits of each particular case.
32. In this regard, the DRC further recalled is a longstanding and well-established
jurisprudence that only a breach or misconduct which is of a certain severity justifies the
termination of a contract, i.e. only when there are objective criteria which do not
reasonably permit to expect a continuation of the employment relationship between the
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parties, a contract may be terminated prematurely. Hence, if there are more lenient
measures which can be taken in order for an employer to ensure the employee’s fulfilment
of his contractual duties, and vice versa, such measures must be taken before terminating
an employment contract. A premature termination of an employment contract can only
ever be an ultima ratio measure.
33. The Chamber acknowledged that, in the matter at hand, the Respondent terminated the
employment contract per 29 January 2024 without any prior warnings. Furthermore, the
members of the Chamber recalled that the Claimant requested clarification regarding the
sudden termination, however, to no avail. Consequently, in line with the principle of
contractual stability, the DRC concluded that the Respondent did not have just cause to
terminate the employment relationship (art. 14 of the Regulations).
ii. Consequences
34. 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.
35. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to one monthly
salary under the contract, amounting to USD 10,000.
36. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber 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 10,000.
37. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from 30 January 2024 until the date of effective
payment.
38. Having stated the above, 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 took note of the
wording of Article X of the Second Employment Agreement, which established that “4. If the
Club terminates the Contract without having just cause, the Club shall pay to the Player
compensation two months. 5. If the Player terminates the Contract without having just cause,
the Player shall pay to the Club compensation 5,000,000 USD.”
39. After analysing the content of the aforementioned clause, the Chamber concluded that it
did not fulfil the criteria of reciprocity and proportionality, in line with the Chamber’s
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longstanding jurisprudence, and therefore could not be taken into account for establishing
the amount of compensation payable to the Claimant.
40. As a consequence, the Chamber determined that the amount of compensation payable by
the Claimant to the Respondent 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.
41. 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. Consequently, the Chamber
concluded that the amount of USD 290,000 (i.e. the residual amount for season 2023/2024,
i.e. USD 50,000 plus USD 120,000 plus USD 120,000) serves as the basis for the
determination of the amount of compensation for breach of contract.
42. 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.
43. In this respect, the Chamber noted that the Player remained unemployed since the
unilateral termination of the contract.
44. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case
the player did not sign any new contract following the termination of his previous contract,
as a general rule, the compensation shall be equal to the residual value of the contract that
was prematurely terminated.
45. In this respect, the Chamber decided to award the Player compensation for breach of
contract in the amount of USD 290,000, as the residual value of the contract.
46. 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 30 January 2024 until the date of effective
payment.
iii. Compliance with monetary decisions
47. 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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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.
48. 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.
49. 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.
50. 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.
51. 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
52. 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.
53. 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.
54. 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-13859
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Abdoulaye Bakayoko, is partially accepted.
2.
The Respondent, Muaither SC, must pay to the Claimant the following amount(s):
- EUR 10,000 as outstanding remuneration plus 5% interest p.a. as from 30 January 2024
until the date of effective payment;
- EUR 290,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 30 January 2024 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
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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
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