Labour Disputes
Texto da decisão
REF. FPSD-11838
Decision of the
Dispute Resolution Chamber
passed on 22 February 2024
regarding an employment-related dispute concerning
the player Kennedy Kofi Boateng
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Tarek Brauer (Germany), member
Johan van Gaalen (South Africa), member
CLAIMANT:
Santa Clara Açores Futebol SAD, Portugal
Represented by 14 Sports Law
RESPONDENT 1:
Kennedy Kofi Boateng, Ghana
Represented by PFAG
RESPONDENT 2:
SC Austria Lustenau, Austria
Represented by Elite Law SA
pg. 2
REF. FPSD-11838
I. Facts of the case
1. On 1 July 2021, the Portuguese club Santa Clara Açores (hereinafter: Claimant or Club)
and the Ghanaian player Kennedy Kofi Boateng (hereinafter: Player or Respondent)
concluded an employment contract (hereinafter: the Contract) valid as from the date of
signature until 30 June 2023.
2. According to clause 2 of the Contract, the Claimant undertook to pay the Player the
following remuneration:
-
2021-2022 season: EUR 9,000 net monthly salary plus EUR 500 monthly rental allowance;
2022-2023 season: EUR 9,500 net monthly salary plus EUR 500 monthly rental allowance;
A signature bonus of EUR 20,000 net;
Conditional bonuses of EUR 10,000 net each for:
o Winning any domestic competition;
o Qualifying for European competitions;
o Qualifying for the group stages of any European competition.
3. Furthermore, clause 2.3 of the Contract outlined as follows:
“Optional, if the option right is exercised by March 30, 2023 for another season, for
this purpose, the parties concluded in writing a fixed-term employment contract
subject to suspensive condition to produce its effects in the event that said option right
is exercised, for the 2023-2024 season:
Santa Clara SAD undertakes to pay the Player the net annual remuneration of
EUR 120,000 to be paid in 12 equal and successive monthly instalments, each worth
EUR 10,000 net, with the first on 5 August 2023, and the following on the same day of
the month subsequent payments, plus EUR 500 per month for housing expenses; all in
total EUR 126,000 net annually.”
4. Moreover, clause 4 of the Contract stipulated as follows:
“The parties agree to grant Santa Clara, SAD the right of option in renewing the
contract for another optional season – Season 2023-2024, if the option right is
exercised by the 30th of March 2023 for another season.”
5. Pursuant to clause 13 of the Contract, the parties agreed that the Player may terminate
the Contract unilaterally, without just cause against a liquidated damages payment of
EUR 4,000,000.
6. Lastly, clause 14 of the Contract stipulated as follows:
“For the resolution of any issue arising from this contract, the Forum of Commerce of
pg. 3
REF. FPSD-11838
Ponta Delgada, or alternatively, the FIFA Dispute Resolution Chamber, with
resignation expressed from any others.”
7. On 17 November 2022, the Claimant sent the Player a written correspondence which
stated as follows:
“The Club is extremely happy to confirm that, by this means, it expressly exercises its
right to extend the Employment Contract signed on 1 July 2021. As a result, your
employment will now terminate on 30 June 2024, and as of 1 July 2023, you shall be
entitled to a monthly global net remuneration of EUR 10,500 net, which amounts of
EUR 126,000 net per year. Moreover, the Club will rely on your availability to discharge
all administrative acts, namely the execution of all documents required to promote the
registration of the extension before the Portuguese Football Federation and the
Portuguese Football League.”
8. On 25 November 2022, the Claimant sent the Player a second written correspondence,
informing the latter that he must attend a meeting at its headquarters on
1 December 2022, in order to formally sign all relevant documents required to register
the purported contractual extension before the Portuguese Football Federation and
Professional League respectively.
9. On 1 December 2022, the Player failed to attend the scheduled meeting without any
explanation.
10. On 27 May 2023, the Player departed Portugal for the summer break.
11. On 14 June 2023, the Claimant contacted the Player via WhatsApp with a message from
its team manager, instructing the Player to attend the pre-season training camp in São
Miguel Island. The Player did not reply to this correspondence.
12. On 19 June 2023, the Claimant sent a message to the official WhatsApp group chat of the
team, in which the Player was registered, informing that each player should get in touch
with the former’s logistics manager to arrange flights to and from the training camp
location, as well as pointing out that training would commence on 30 June 2023.
13. On 22 June 2023, the Claimant contacted the Player individually through the team
manager, receiving an individual holiday training plan, with no reply from the Player.
14. On 29 June 2023, the Claimant sent a further correspondence to the Player via
WhatsApp, reminding that training was scheduled to start on 30 June 2023.
15. On 3 July 2023, the Player removed himself from the official WhatsApp group chat of the
Claimant.
pg. 4
REF. FPSD-11838
16. On 14 July 2023, the Claimant sent a formal notice to the Player, requesting him to return
to training by no later than 17 July 2023, as well as once again inviting him to contact the
logistics manager to arrange travel to the training camp site.
17. At an unspecified date, a newspaper article was published in which the Player declared
himself a free agent, and stated that he considered the Contract to have expired on
30 June 2023.
18. On 24 July 2023, the Claimant sent the Player notice of commencement of disciplinary
proceedings against him for unauthorized absence.
19. In reply to the abovementioned disciplinary proceedings, the Player briefly stated that
he considered himself a free agent, given that the Contract purportedly expired on
30 June 2023.
20. On 6 November 2023, the Player signed a new contract with the Austrian club SC Austria
Lustenau (hereinafter: the New Club) valid as from the date of signature until 31 May 2024
(hereinafter: the New Contract).
21. In accordance with the New Contract, the New Club undertook to pay the Player a
monthly salary of EUR 5,750.
pg. 5
REF. FPSD-11838
II. Proceedings before FIFA
22. On 19 September 2023, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a. Position of the Claimant
23. According to the Claimant, the Football Tribunal clearly has jurisdiction over the present
dispute on account of the unclear nature of clause 14, which specifically addresses FIFA as
one of the competent forums.
24. The Claimant outlined that the Player terminated the Contract without just cause by not
acknowledging the unilateral extension contained in clause 2.3 thereunder.
25. The Claimant outlined that the Player had been sent a formal confirmation of the extension
on 17 November 2022, as well as several notices informing him that he ought to return to
training on 30 June 2023 for the new season.
26. The Claimant further outlined that it attempted to reintegrate the Player in good faith by
sending him a formal warning on 14 July 2023, as well as opening disciplinary proceedings,
to no avail.
27. As to the validity of the unilateral extension option, the Claimant firmly argued in favour of
its validity, arguing that the extension satisfies the Portmann-criteria, which should be held
as the purported “benchmark” for upholding unilateral extension options.
28. As a result of the unilateral extension option having been effected validly, the Claimant
argued that the Player was bound contractually until 30 June 2024, and breached the
Contract without just cause when he refused to acknowledge the extension and attend
training in the new season.
29. The requests for relief of the Claimant, as amended, were therefore as follows:
-
EUR 4,000,000 net as compensation, pursuant to the liquidated damages clause
contained in the Contract;
-
Sanctions on the Player.
b. Position of the Player
30. In his reply, the Player firstly contested the jurisdiction of FIFA on the basis of clause 14 of
the Contract, stating that the Forum of Commerce of Ponta Delgada is exclusively
competent to hear any disputes related to the Contract.
pg. 6
REF. FPSD-11838
31. As to the merits, the Player asserted that unilateral extension options are per se not valid,
as they are restrictive of players’ freedom and take advantage of the players’ weaker
bargaining position.
32. The Player emphasised that this was reflected in jurisprudence of not only the Football
Tribunal, but also the Court of Arbitration for Sport. In particular, the Player stressed that
the Portmann-criteria are not a binding requirement for the analysis of unilateral extension
options.
33. Notwithstanding, the Player argued that, in the eventuality that the Chamber should deem
the Portmann criteria relevant, the Contract and purported extension do not meet those
criteria, given that the financial terms of the extension are significantly too low to be able
to qualify for a potentially valid extension.
34. The Player also wished to point out that Portuguese law prohibits the inclusion of unilateral
extension clauses and that this was a further reason to disregard the validity of clause 2.3
of the Contract.
35. As a result, the Player argued that the unilateral extension clause is invalid and that the
Contract merely expired naturally on 30 June 2023, as submitted in reply to the disciplinary
proceedings opened against him.
36. The Player, therefore, requested for the claim to be rejected.
37. For completeness’ sake, the Player wished to emphasise that the liquidated damages
clause of EUR 4,000,000 is entirely disproportionate and should be disregarded in any
event.
c. Position of the New Club
38. The New Club argued that the Player had not breached the Contract, given that the
unilateral extension option was invalid. Rather, the Player had simply signed a new
employment contract with the New Club following the natural expiry of the previous
Contract on 30 June 2023.
39. The New Club equally thoroughly contested the allusion that it had induced the player,
arguing that it had all the assurances and guarantees that the Player was no longer
contractually linked to the Club.
40. The New Club provided ample evidence to corroborate having conducted its due diligence
as to ensuring that the Player had no contractual relations prior to engaging him.
pg. 7
REF. FPSD-11838
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
41. 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 19 September 2023 and
submitted for decision on 22 February 2024. Taking into account the wording of art. 34 of
the March 2023 edition of the Procedural Rules Governing the Football Tribunal
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
42. 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 – in principle – competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
Ghanaian player and a Portuguese club.
43. Notwithstanding, the Chamber took note of the Player’s contention that the Football
Tribunal does not have jurisdiction to hear the present dispute by virtue of clause 14 of the
Contract.
44. In respect of the above, the Chamber recalled the wording of art. 22 par. 1 lit. b), pursuant
to which parties may opt out of FIFA’s jurisdiction, provided that a clear and exclusive clause
in favour of another independent arbitration tribunal has been stipulated in the relevant
contract.
45. In the case at hand, the Chamber referred to clause 14 of the Contract, which read as
follows:
“For the resolution of any issue arising from this contract, the Forum of Commerce of Ponta
Delgada, or alternatively, the FIFA Dispute Resolution Chamber, with resignation expressed from
any others.”
46. The Chamber also wished to point out that the Claimant had already pre-emptively
challenged the validity of such provision in its claim, substantiating this by stating that, as
FIFA is expressly mentioned as one of the competent fora in the clause, its jurisdiction
cannot be excluded by virtue thereof.
47. After carefully assessing the above provision, the Chamber deemed that such clause was
not “clear and exclusive” in the sense prescribed by the Regulations. Indeed, the Chamber
opined that the Forum of Commerce of Ponta Delgada was not only not named as the sole
pg. 8
REF. FPSD-11838
competent tribunal, but the other tribunal to which jurisdiction had been expressly
conferred was the Chamber itself.
48. For completeness’ sake, the Chamber took note that the Player argued that the Forum of
Commerce of Ponta Delgada was the “first choice”, however, this was neither corroborated
by the Player, nor would this, in the affirmative, have altered the Chamber’s conclusion as
to the lack of clarity and exclusivity surrounding this provision.
49. Thus, the Chamber dismissed the challenge as to its jurisdiction and continued its
deliberations.
50. 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 19 September 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
51. 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
52. 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
53. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties are in dispute as to the lawfulness of the
Player’s departure from the Contract, within the context of the term of duration of the
Contract.
pg. 9
REF. FPSD-11838
54. In this context, the Chamber acknowledged that its task was to determine whether the
unilateral extension clause included in the Contract was lawful and valid, subsequently
until when the Contract was still in place, and lastly whether or not this constituted a breach
of contract without just cause by the Player.
55. Prior to entering the analysis of the matter at hand, the Chamber briefly recalled the
parties’ submissions. In this respect, the Chamber took note of the Claimant’s line of
reasoning that the Player terminated the Contract without just cause by departing and
disregarding a validly concluded unilateral extension clause. Equally, the Claimant opined
that the Player was induced by the New Club, as a consequence of having signed the New
Contract following the breach committed by the former without just cause.
56. On the other hand, the Player – and his New Club – argued that the Contract had expired,
as the unilateral extension option was not valid based on longstanding jurisprudence on
the matter, and that, as a result, the Player was free to conclude a new employment
contract – in this case with the New Club. As such, both the Player and the New Club
requested that the claim be rejected in its entirety.
57. In light of the above submissions, the Chamber considered that the first issue it should
address is the validity of the unilateral extension under clause 2.3 of the Contract.
58. The Chamber recalled that said provision indicated as follows:
“Optional, if the option right is exercised by March 30, 2023 for another season, for this
purpose, the parties concluded in writing a fixed-term employment contract subject to
suspensive condition to produce its effects in the event that said option right is exercised, for
the 2023-2024 season:
Santa Clara SAD undertakes to pay the Player the net annual remuneration of EUR 120,000
to be paid in 12 equal and successive monthly instalments, each worth EUR 10,000 net, with
the first on 5 August 2023, and the following on the same day of the month subsequent
payments, plus EUR 500 per month for housing expenses; all in total EUR 126,000 net
annually.”
59. In this context, the Chamber deemed – in line with the jurisprudence of the Chamber and
the Court of Arbitration for Sport (CAS) and the criteria developed in the legal literature –
that the totality of the circumstances under which the clause was agreed should be taken
into account for the sake of determining its validity including but not limited to the terms
of the Contract preceding such purported extension.
60. At this point, the members of the Chamber deemed it appropriate to recall the elements
which it considered as relevant for the assessment whether the unilateral extension option
in the case at hand could be validly upheld:
pg. 10
REF. FPSD-11838
-
the potential maximum duration of the employment contract shall not be
excessive;
-
the unilateral extension option must be exercised by the club within an acceptable
deadline, before expiry of the current employment contract;
-
the salary reward derived from the option right must be defined in the original
contract and must correspond to a “substantial salary increase”;
-
one party may not be at the complete mercy of the other in respect of the contents
of the contract;
-
the option must be clearly established and emphasised in the original contract, so
that the player is aware of it at the time of signing;
-
the extension should be proportional to the main contract;
-
it should be advisable to limit the number of extensions to one sole extension.
61. The Chamber found that the above elements give helpful guidance as to the question
whether or not the option clause at stake is valid or not. However, for the sake of
completeness, the members of the Chamber emphasised that the overall package of
elements is decisive in order to assess the validity of such clause. The specific
circumstances of each case are always decisive.
62. With this in mind, the Chamber deemed it important to recall the timeline leading up to the
original contractual term, and in particular the correspondence exchange between the
parties in this context.
63. The Chamber noted that the Claimant very early announced its intention to extending the
term of the Contract already, on 17 November 2022, expressly referring to the contents of
clause 2.3 of the Contract.
64. Upon inviting the Player on two separate occasions – once on 17 November 2022, and
thereafter on 25 November 2022 – to formalise such extension and to complete the
relevant documentation, the Player did not attend the meeting set on 1 December 2022
for the sake of carrying the extension out. Equally, the Player had not provided any
affirmative feedback to the Claimant in respect of proceeding with such extension, despite
the Claimant’s clear instructions that it would “rely on his availability to discharge the relevant
administrative acts”.
65. What is more, the Chamber took note that the Player had removed himself from the
Claimant’s WhatsApp group on 3 July 2023, as well as indicating both in a newspaper article
as well as communicating directly to the Claimant shortly after the notification of
disciplinary proceedings that he considered the Contract naturally expired as of
30 June 2023 and that he was now a free agent.
pg. 11
REF. FPSD-11838
66. The Chamber considered that, whilst the communication between the parties was
relatively scarce between November 2022 and July 2023, and the Player could certainly
have voiced his reluctance to the contractual extension earlier and in a more express
manner, the Claimant’s indifference to the Player’s silence equally demonstrated that it
considered the extension to be valid regardless of whether the Player cooperated with the
relevant formalities or not.
67. This was, in the Chamber’s opinion, already a strong indication that the Player was at the
mercy of the Claimant when it came to the possible extension of the Contract – with the
latter being prepared to move forward with the extension despite the absence of a possible
mutual intention thereto from the counterparty – i.e. the Player. As a general point of
departure, the validity of any contract and/or extension rely on the clear and unequivocal
consensus of the parties, expressing their clear intention to continue with the contractual
relationship.
68. Beyond this, the Chamber wished to also consider the unilateral extension clause as to its
substance, which was considered an equally as important aspect in determining the validity
of such a provision.
69. In particular, the Chamber considered that the unilateral extension clause bore two
substantial issues in respect of the remuneration payable to the Player.
70. On one hand, the Chamber noted that whilst the Contract outlined not only a monthly
salary, but also several conditional bonuses (contained in clause 2 thereunder), the
extension only referred to a monthly salary.
71. This raised doubts for the Chamber as to whether the Claimant would still have been
entitled to those conditional bonuses in the extended term. The Chamber wished to point
out that the provision foreseeing the extension could have easily mitigated this issue by
including a general statement as to the inclusion of any of the existing bonuses.
72. Such lack of clarity was considered by the Chamber as detrimental for the validity of the
extension, particularly considering that both the signature bonus and the recurring win
bonuses for domestic competitions and qualification to European competitions could add
up to multiple monthly salaries. Under the circumstances, the Chamber sees no reason to
believe why the Player would want to extend his contract on less favourable terms as
before.
73. Similarly, the Chamber referred to the proposed figure concerning the monthly salary
during the extended term. In the case at hand, the Player would have been entitled to
EUR 10,500 per month (inclusive of rental allowance), compared to the previous season,
which represented a total remuneration of EUR 10,000 (inclusive of rental allowance) – i.e.
an increase of EUR 500 per month.
pg. 12
REF. FPSD-11838
74. In respect thereof, the Chamber remarked that such increase of EUR 500 per month would
have amounted to merely 5% of the overall remuneration.
75. Referring to its jurisprudence surrounding unilateral extension options, the Chamber
recalled that extensions stipulating an increase of in excess of such percentage had not
been considered a substantial salary increase. At the same time, the Chamber reiterated
that this, of course, depends on the specific circumstances in each case.
76. In the matter at hand, even under a favourable interpretation that the extension included
the conditional bonuses previously included in the Contract – which, once again, was not
clear – the new remuneration, augmented by 5%, would not constitute a “substantial
increase” in the Chamber’s estimation.
77. At this point, the Chamber equally wished to stress that the criterium of a substantial salary
increase represented one of the most important elements in upholding the validity of a
unilateral extension option.
78. In light of the above considerations, the Chamber was able to conclude that the unilateral
extension option contained in clause 2.3 of the Contract could not be upheld. Not only was
it evident from the context that the Player was reluctant to continue his contractual
relationship with the Claimant, but particularly the terms of the extension were neither
clear enough, nor sufficiently lucrative to meet the collective criteria of a valid unilateral
extension option – the threshold for which is already considerably high by its nature alone.
79. As a result of the invalidity of the unilateral extension option, the Chamber was able to
establish that the Contract expired on its originally stipulated term, namely 30 June 2023.
80. By that point, the Chamber equally recalled that the parties had no outstanding monetary
obligations towards each other.
81. As such, and in conclusion, the Chamber decided that the claim of the Claimant had to be
rejected.
d. Costs
82. 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.
83. 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.
pg. 13
REF. FPSD-11838
84. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 14
REF. FPSD-11838
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the claimant, Santa Clara
Açores Futebol SAD.
2.
The claim of the Claimant is rejected.
3.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 15
REF. FPSD-11838
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 16