Labour Disputes
Texto da decisão
REF FPSD-3862
Decision of the
Dispute Resolution Chamber
passed on 24 February 2022
regarding an employment-related dispute concerning the player Wonlo
Coulibaly
COMPOSITION:
Clifford Hendel (USA/France), Deputy Chairman
Gonzalo de Medinilla (Spain), member
Jorge Gutierrez (Costa Rica), member
CLAIMANT:
Wonlo Coulibaly, Côte d'Ivoire
Represented by M. Kwaku Avorgah
RESPONDENT:
Al-Shorta Sports Club, Iraq
Represented by Nezar Ahmed
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REF FPSD-3862
I.
Facts of the case
1.
On 3 September 2021, the player and the club both signed a document with the title “Job
offer”, in which it is stipulated that the club “is pleased to offer you the position of football
professional player as your skills and experience will be an ideal fit for our demands”.
2.
The offer also stated the following:
“Contract duration: one season (2021-2022)
Salary:
For the full contract duration USD 150,000 to be paid as follows:
• 40% upon signing of the contract;
• 30% in equal monthly instalments;
• 30% at the expiry of the contract.
Other benefits:
• Health insurance as per the club policies and procedures;
• Accommodation and meals;
• Flight tickets.
This offer only serves as an intent to enter later into a binding contract as does not create a
valid employment contract nor does obligate [the club] to a commitment to complete the
transaction. Hence, it is not the final contract and does not represent the definitive agreement
between the parties.
All terms and conditions of the employment contract must be approved and agreed upon in
writing under an employment contract to be later duly signed by the parties.
In any case, the validity of such employment contract shall be subject to passing a medical
exam by you and the agreement of your last club with which you had a contract employment.
If you choose to accept this job offer, please sign below and email it back to us no later than
48 hours of receiving it.
This job offer is valid for (…) 48 hours from the time of delivery by electronic means of hand
delivery and shall cease to exist thereafter.
For player use only:
I hereby tentatively accept the above-mentioned offer.
Signature: (…)
Date: 04.09.2021”
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3.
On 20 September 2021, the player contacted the club in writing, requesting an explanation
about the club’s alleged decision of terminating the employment contract (i.e. the offer) and
its failure to provide him with a flight ticket to join the club. The aforementioned
correspondence allegedly remained unanswered by the club.
4.
On 27 October 2021, the player signed a new employment contract with the Omani club Al
Suwaiq, valid as from the date of signature until 31 May 2022, for a “basic salary during the
contract period” of USD 3,000.
5.
On 8 November 2021, the parties terminated the employment contract and the player signed
an “Acknowledgement”, by means of which he confirms to have received the amount of USD
3,000 from the club, “which is all my financial dues for the contract signed with the club for
the season 2021/2022”.
II. Proceedings before FIFA
6.
On 30 September 2021, 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
7.
According to the Claimant, the offer was a valid employment contract and the club is
responsible for its non-execution.
8.
In particular, the player alleged that the offer contained the identity of the parties, the duration
of the contractual relationship, the provision of work service, the payment of remuneration in
exchange for work done and the existence of a link of legal subordination. As per the player,
the offer has all the essentialia negotii of a valid employment contract and should therefore be
considered as such. The validity of the contract would start on 4 September 2021, date in
which the player allegedly signed and accepted the offer.
9.
The player also points out that the club had announced his hiring on Twitter and Instagram,
making it allegedly official. On 5 September 2021, the club applied for a visa for the player and
the latter was granted. The club, however, violating its obligations as per the contract, failed
to provide the player with a flight ticket to Iraq.
10. The club did not reply to the player’s communication of 20 September and the player considers
the aforementioned as a “proof of unilateral and anticipated termination of the contract by
the club”.
11. The player accused the club of acting in bad faith, as it knew that the player was unemployed
at the time and did not need the authorisation of a previous employer to conclude a formal
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employment contract. The prerequisite of passing a medical exam contained in the offer should
also be disregarded, as per the RSTP it cannot be a condition for the validity of an employment
contract.
12. In view of the foregoing, the player deems that the club terminated their valid employment
contract in a unilateral and anticipated manner and requests FIFA to:
a. “Confirm the validity of the contract of 03.09.2021 signed between the club and the
professional player,
b. Recognise violations of FIFA’s RSTJ, early unilateral termination of contract and noncompliance with contract obligations by the club;
c. Order the club to pay the sum of (salary) USD 150,000 to the player as compensation
plus 5% interest p.a. as from 04.09.2021;
d. Order the club to pay the player the amount of USD 3,000 (…) representing the financial
value of a return air ticket Lubumbashi-Baghdad-Lubumbashi (…);
e. Order the club to pay the player an amount of USD 1,000/month x 10 months, that’s
USD 10,000 equivalent to meals expenses for one season in Iraq. The contract states
clearly that the club provide accommodation and meals and flight tickets to the player;
f. Order the club to pay the player USD 25,000 (…) representing accommodation
fee/financial valid of one season, that’s an average of USD 2,500/month x 10 months
(…);
g. Order the club to pay the player USD 2,000, representing the financial value of player
health insurance covering one season in Iraq;
h. Order the club to pay to the player a penalty fee of USD 50,000, for prejudice caused to
the player by this unilateral termination of contract (…);
i. Order the club to pay to the player the amount of USD 20,000 for fees spent on legal
services.
Overall, we request FIFA to order [the club] to pay the player a total compensation amount
of USD 260,000 (…) as detailed above”.
b. Position of the Respondent
13. According to the Respondent, its “position is simple and short. Since the Claimant did not
communicate to the Respondent his acceptance of the Offer within the time limit set out
therein, the Offer is null and void and deprived of any legal effect”.
14. In particular, the club points out that the player did not substantiate his claim with any relevant,
official documentation, given that no evidence of having communicated the acceptance of the
offer in due time was provided and that the only documents enclosed in this respect are prints
from internet websites, without any probatory value. In this respect, the club points out that
“contrary to what the Claimant had purported, these alleged Facebook and Instagram accounts
do not belong to the Respondent nor did the Respondent make any announcement regarding
the alleged signing of the Claimant on its homepage, social media accounts or to the media”.
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The club also states that nothing in these postings establish that these accounts belong to the
club; to the contrary, they indicate that they belong to someone named “mnbrshorta”, located
in Côte d’Ivoire, the player’s home country.
15. Notwithstanding the foregoing, the club points out that the decisive argument in the present
case is that the player never communicated the acceptance of the offer to the club within the
delay of 48 hours, which is a formal validity requirement clearly stipulated in the offer. The club
claims that it “did not receive at all from the Claimant his acceptance of the offer through any
means of communication, let alone receiving it by e-mail. As a matter of fact, the only
communication of any kind that the Respondent had received from the Claimant was the email and letter of 20 September 2021 (…). This correspondence was received 14 days after the
expiration of the time limit for acceptance set out in the Offer”. The club emphasises that the
player’s alleged acceptance of the offer, by supposedly signing it on 4 September, is irrelevant
as such acceptance was never communicated to the club, within the stipulated deadline. In
fact, the official communication of the acceptance by email is clearly stipulated in the offer,
but was obviously not executed by the player.
16. Based on the foregoing, the club is of the opinion that no contractual relationship was ever
established between the parties and the player’s claim should be entirely rejected.
c. Replica of the Claimant:
17. In his replica, the player fully rejects the argumentation of the club and insists that the offer
was valid and binding between the parties. In particular, the player claims that “all negotiations,
exchanges, all agreements, sending and receiving documents between the two parties (…)
have been carried out by one and only electronic means: Whatsapp. It is by Whatsapp
electronic means that the club sent all correspondences to the player and conversely it is by the
same Whatsapp electronic means that the player replies to the club. Nothing was done by email or through emails. The player has never communicated his email to the club; reciprocally
the club also never communicated their email address to the player”. As the player sent the
club the countersigned offer on 4 September 2021 by Whatsapp, he deems to have complied
with the formal prerequisites for the offer to become binding between the parties. In support
of his argumentation, the player provided several prints of alleged conversations with the club
per Whatsapp, including photos of himself allegedly signing and holding the signed contract.
18. The player also provides a translation of his entry visa for Iraq, requested by the club for him
on 5 September 2021 and issued on 9 September 2021. The visa was allegedly forwarded to
him by Whatsapp on 11 September 2021, a print of which is on file. He also claims to have
undergone the mandatory PCR test in Côte d’Ivoire on 13 September 2021, but indicates the
costs were never reimbursed by the club. The player understands that the club would never
have applied for a visa for him on 5 September 2021 or asked him to undergo a PCR if it had
not received a positive answer from his side. Furthermore, the player rejects that the Facebook
and Instagram accounts do not belong to the club and provides a print that indicates that
“mnbrshorta” is located in Bagdad.
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19. Based on the foregoing, the player deems that the offer established a valid and binding
employment relationship between the parties and thus the club is to be held liable for its
unjustified breach.
d. Duplica of the Respondent:
20. In its duplica, the club insists on its position and points out a few alleged incoherencies in the
documentation provided by the player, namely:
a. The probatory weight of the documentation provided by the player is null, as it consists
merely of 17 prints of Whatsapp conversations, where the legal identity of the
communicating parties is not reliable;
b. The player still could not provide any evidence that he indeed sent the acceptance of the
offer by email, fulfilling its formal prerequisites of validity;
c. The player was communicating with an alleged Mr/Ms Savas, who the club does not
know, via an Egyptian phone number;
d. The photos of the player allegedly signing, respectively holding the signed offer, do not
permit to identify which document he has in hands.
21. Finally, the club insists that the text of the offer is clear and that the player did not provide the
club with a countersigned offer by email in 48 hours. Thus, the offer expired, no further
employment contract was signed and the parties are not contractually bound. Consequently,
the player’s claim should be entirely rejected.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the 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 30 September 2021 and submitted for
decision on 24 February 2022. Taking into account the wording of art. 34 of the October 2021
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.
23. Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. b) 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 Regulations on the Status and Transfer of Players (August 2021 edition), it is
competent to deal with the matter at stake, which concerns an employment-related dispute
with an international dimension between an Ivorian player and an Iraqi club.
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24. 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 (August 2021 edition), and
considering that the present claim was lodged on 30 September 2021, the August 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
25. 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
26. 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
27. The foregoing having been established, the Chamber noted that the parties’ first fundamental
disagreement is whether the document named “Job offer” dated 3 September 2021 and
allegedly accepted by the player on 4 September 2021 can be considered as a valid and binding
employment contract.
28. In view of the foregoing, the Chamber started by recalling its well-established jurisprudence
which dictates that, in order for an employment contract to be considered as valid and binding,
apart from the signature of both the employer and the employee, it should contain the
essentialia negotii of an employment contract, such as the parties to the contract and their
role, the duration of the employment relationship and the remuneration payable by the
employer to the employee.
29. In casu, after analysing the content of the disputed “job offer” on file, the Chamber noted
that such document indeed provides for the duration of the employment relationship (season
2021/2022), the remuneration payable to the player (USD 150,00 in total) and clearly stipulates
that the player is employed as “football professional player” with the club.
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30. The Chamber noted that the main point of disagreement between the parties was whether
the player had in fact expressed his will to be bound by the “job offer”, as the latter provided
that the player, in order to accept it, would have to sign it and email it back to the club by no
later than 48 hours after receiving it.
31. The player, on the one hand, understands to have clearly acquiesced to the terms of the offer
and accepted to be contractually bound to the club, by providing it on 4 September 2021 via
WhatsApp – the main communication channel used by the parties during the negotiations –
with a photo of him holding the signed contract, which he deems to prove beyond doubt that
he complied with the formal pre-requisite of acceptance of the offer. Furthermore, the player
indicates that the club acted accordingly, by requesting his entry visa on 5 September 2021,
issued on 9 September 2021, and forwarding it to him by Whatsapp on 11 September 2021.
32. The club, on the other hand, points out that the “job offer” clearly and repeatedly stated that
the player’s acceptance must be done within 48 hours as from the receipt of the offer, via
email. Such clear, formal pre-requisite of validity of the “offer” – or rather its conversion into
an employment contract – was, according to the club, clearly not fulfilled by the player and
therefore no contractual relationship was established between the parties. In addition, the club
disputes the ownership of the social media accounts indicated by the player, where his hiring
was allegedly confirmed.
33. In view of the foregoing and analysing the supporting documentation provided by the parties,
the Chamber first noted that the club appears to have publicly recognised in its social media
that the player had been hired. In spite of its objection, the club was not able to provide any
evidence that such accounts actually did not belong to it. Furthermore, the Chamber
recognised that the communication between the parties during the negotiations was mainly
established via WhatsApp and that the requirement of the acceptance of the offer by email
was excessively formalistic and therefore not in line with the principles of labour law, according
to which factual employment establishes a legal relationship between the parties, even if the
formal pre-requisites are not entirely present. Indeed, after the player’s communication of the
acceptance via Whatsapp on 4 September 2021, the club filed a request for the player’s visa
and forwarded it to him on 11 September 2021. The Chamber thus understood that the club
was estopped from changing its behaviour after acting in line with the acceptance of the
employment relationship between the parties and that reality prevails over formality to establish
that the employment relationship was concluded.
34. Thus, the Chamber concluded that the “job offer” contained all the essentialia negotii and was
validly accepted by both parties, which subsequently performed several acts in line with the
existence of an employment relationship between them. Consequently, the “job offer” is
considered as a valid and binding employment contract and shall be considered in the case at
stake as the contractual basis of the present dispute.
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35. Having established the foregoing, the Chamber noted that it was not disputed between the
parties that the valid contract concluded between the parties on 4 September 2021 was never
executed by the club and that the latter was not able to provide a valid reason for having done
so. Thus, the club is to be held liable for the unjustified breach of the employment contract
concluded with the player and must bear the financial and sporting consequences of such
breach.
ii. Consequences
36. Having stated the above, the Chamber turned its attention 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.
37. In application of the relevant provision, the Chamber held that it first of all had to clarify
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.
38. 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.
39. 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.
40. 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 until its
term. Consequently, the Chamber concluded that the amount of USD 150,000 (i.e. the
remuneration due as per the offer for the entire duration of the contract) serves as the basis
for the determination of the amount of compensation for breach of contract.
41. In continuation, the Chamber verified 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 Chamber as
well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new employment
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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.
42. Indeed, the player found new employment with the Omani club Al Suwaiq. In accordance with
the pertinent employment contract, the player was entitled to a basic salary of USD 3,000
between 27 October 2021 and 31 May 2022. The Chamber however noted that the parties
terminated such contract 8 November 2021 and signed an “Acknowledgement”, by means of
which the player confirmed to have received the amount of USD 3,000 from the club, “which
is all my financial dues for the contract signed with the club for the season 2021/2022”.
43. Consequently, on account of all the above-mentioned considerations and the specificities of
the case at hand, the Chamber decided that the club must pay the amount of USD 147,000 to
the player (i.e. USD 150,000 minus USD 3,000), which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
44. For the sake of completeness, the Chamber explained that the player’s requests for the
reimbursement of an air ticket, of meal expenses, of accommodation expenses, of the value of
a health insurance and for the payment of a penalty for unilateral termination must all be
rejected, due to their lack of contractual basis. The claim for legal fees is rejected on the basis
of art. 25 par. 8 of the Procedural Rules.
45. 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 4 September 2021 until the date of effective payment.
iii. Compliance with monetary decisions
46.
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.
47.
In this regard, the Chamber 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.
48.
Therefore, bearing in mind the above, the Chamber decided that the club 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 creditor, a ban from registering any new
players, either nationally or internationally, for the maximum duration of three entire and
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consecutive registration periods shall become immediately effective on the club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
49.
The club 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.
50.
The Chamber 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
51.
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.
52.
Furthermore, 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.
53.
Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Wonlo Coulibaly, is partially accepted.
2.
The Respondent, Al-Shorta Sports Club, has to pay to the Claimant, the following amount(s):
USD 147,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 4 September 2021 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 (August 2021
edition), 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).
CONTACT INFORMATION
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