DRC - Preliminary Decisions
Texto da decisão
REF. FPSD-14019
Decision of the
Dispute Resolution Chamber
passed on 11 June 2024
regarding an employment-related dispute concerning
the player Fatou Coulibaly
BY:
Dana MOHAMED AL-NOAIMI (Qatar), Single Judge
CLAIMANT:
Fatou Coulibaly, Ivory Coast
Represented by SILA
RESPONDENT:
Al Riyadh SC, Saudi Arabia
Represented by Gustavo Koch Pinheiro
pg. 2
REF. FPSD-14019
I. Facts of the case
1.
On 6 January 2024, the Saudi club Al Riyadh (hereinafter: the Club or Respondent)
approached the Ivorian player Fatou Coulibaly (hereinafter: the Player or Claimant) through
her agent, Mr. Maksimov, in order to negotiate a potential employment agreement.
2.
On 11 January 2024, the Club sent a digital document named “Fatou Coulibaly Contract” to
the Player, asking the latter to countersign it under each page.
3.
On the same date, the Player signed the Contract and sent it back to the Club.
4.
Pursuant to art. 4 of the abovementioned document (hereinafter: the Contract), the Player
would enter an employment relationship with the Club from 1 January 2024 until 30 May
2024.
5.
Furthermore, in accordance with the Contract, the Club undertook to pay to the Player inter
alia a monthly salary of USD 6,500 net plus a sign-on fee in the amount of USD 3,500 net.
6.
On 23 January 2024, the Club warned the Player about the existence of potential issues
allegedly preventing the Club from registering the Player at the Saudi Arabian Football
Federation (hereinafter: SAFF), referring in particular to the criteria established by the latter
for the obtainment of the relevant federative license.
7.
On 31 January 2024, the Club informed the Player that the Contract would have not been
executed due to the Club being unable to register the Player within the relevant deadline.
8.
On 5 February 2024, the Player sent an email to the Club demanding clarifications as to the
reasons for the unilateral termination of the Contract by the latter, to no avail.
II. Proceedings before FIFA
9.
On 12 March 2024, the Player 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
10. According to the Player, the Club unlawfully refused to execute the Contract after sending
the final version containing all the essentialia negotii on 10 January 2024.
11. In this respect, the Player affirmed that the Club unequivocally manifested its willingness
to execute the Contract and register the Player on several occasions, thus being irrelevant
the alleged inability to register her within the deadline fixed by the SAFF.
pg. 3
REF. FPSD-14019
12. The Player therefore argued having signed a valid and binding agreement with the Club,
that however failed to comply with its terms and de facto unilaterally terminated it on 31
January 2024.
13. The requests for relief of the Player, accordingly, were the following:
-
USD 3,500 as outstanding sign-on fee;
USD 6,500 as outstanding salary for January 2024;
USD 26,000 as compensation for the early termination of the contract without just cause;
5% interest p.a. as from the relevant due dates.
b. Position of the Respondent
14. In reply to the claim, the Club first objected to the nature of the Contract as a final and
binding employment agreement.
15. In particular, the Club held that the document sent to the Player in January 2024 was only
a draft of the potential employment agreement, the validity of which would be conditional,
inter alia, on the Club obtaining the relevant federative license.
16. In this respect, the Club stated that being the draft not the final version of the employment
agreement but rather a preliminary contract it could be made subject to the
aforementioned conditions and the Club would have had just cause to refuse to enter the
definitive employment agreement with the Player.
17. Subsidiarily, the Club sustained that should the FIFA deciding body determine a breach of
contract by the Club, the amount to be paid by the latter as compensation shall be limited
to the equivalent of one month salary.
18. Furthermore, the Respondent stated that no outstanding remuneration nor sign-on fee
shall be due to the Player because the actual employment contract never entered into
force.
c. Rejoinder of the Player
19. In response to the Club’s allegations regarding the “draft”, the Player argued that the Club
never referred to the Contract as a preliminary agreement but rather manifested its desire
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REF. FPSD-14019
to establish an employment relationship with the Player at the latter’s earliest convenience,
namely by asking the latter to provide a signed copy of the said document within the
following few days and never referring to existence of any further document to be signed
in the future.
20. The Player therefore upheld her requests for relief.
d. Club’s final comments
21. In its final submission, the Club insisted on having only negotiated a potential employment
contract with the Player until the moment in which it found out about the impossibility to
register the latter due to licensing issues related to the national relevant regulations.
22. Accordingly, the Club sustained having only signed a preliminary contract with the Player
and having terminated it with just cause because of administrative issues.
23. Lastly, and on a subsidiary way, the Club contested that it shall be held liable to pay a
reduced compensation in the amount of one month salary only.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
24. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the Single Judge) analysed whether she was competent to deal with the case at hand.
In this respect, she took note that the present matter was presented to FIFA on 12 March
2024 and submitted for decision on 11 June 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.
25. Subsequently, the Single Judge 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 (June 2024 edition), the Single Judge of
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 Saudi club.
pg. 5
REF. FPSD-14019
26. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (June 2024 edition), and
considering that the present claim was lodged on 12 March 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
27. The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which she 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
28. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations she will refer only to the facts, arguments and documentary evidence,
which she considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
29. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties’ first fundamental disagreement is
whether the document concluded between them on 11 January 2024 can be considered as
a valid and binding employment contract.
30. In particular, the Single Judge noted that, on one hand, the Club alleges having merely
signed a pre-contract, i.e., a preliminary agreement for the potential signing of a future
employment contract, and that, therefore, it could be validly made subject to the Club’s
ability to obtain the relevant federative licenses. On the other hand, the Player rebutted
such allegations, arguing that said document would indeed constitute the definitive version
of the employment contract between the parties as it contains all the essentialia negotii.
31. In view of the foregoing, the Single Judge started by recalling the well-established
jurisprudence of the Dispute Resolution Chamber, which dictates that, in order for an
employment contract to be considered as valid and binding, apart from the signature of
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REF. FPSD-14019
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.
32. In casu, after a thorough analysis of the documentation on file, the Single Judge concluded
that all such elements were included in the document filed by the Player. In other words,
the Single Judge understood that the legal document concluded by the parties on 11
January 2024 indeed included all the relevant information at the basis of an employment
relationship between contractual parties. Specifically, the document contains the signature
of both parties, provides for the duration of the employment relationship and the
remuneration payable to the Player. Moreover, it clearly stipulates that the Player is
employed as a footballer with the Club. Thus, the Single Judge concluded that the Contract
is in fact a valid and binding employment agreement and shall be considered in the case at
stake as the contractual basis of the present dispute.
33. With the foregoing in mind, the Single Judge observed that the Club admittedly withdrew
from the execution of the Contract based solely on the alleged issues incurred regarding
the registration of the Player with the SAFF.
34. In this context, the Single Judge first reminded the parties that, in line with the contents of
art. 18 par. 4 of the Regulations, as well as the jurisprudence of FIFA, the validity of an
employment contract cannot be made conditional upon the execution of (administrative)
formalities, such as, but not limited to, the registration procedure in connection with the
international transfer of a player, which are of the sole responsibility of a club and upon
which a player has no influence. As a club is supposedly interested in acquiring the rights
of a player and in benefiting from his/her services, it is also expected to act accordingly and
execute the administrative formalities in view of obtaining, for instance, the player’s ITC
and his/her subsequent registration with the engaging FA. Consequently, the registration
or not of the player with the relevant FA does not exempt the club of complying with the
financial terms of the contract. Finally, the Single Judge that it is the club’s obligation to
ensure that all administrative formalities are met for the player to be able to play, as per
the employment contract.
35. Based on the foregoing, the Single Judge rejected the Club’s objection and determined that
the latter is liable to pay the Player the financial dues deriving from the employment
contract, in spite of the missing registration.
ii. Consequences
36. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the Club.
pg. 7
REF. FPSD-14019
37. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Player, are equivalent to the salary of
January 2024 plus the relevant the sign-on fee under the Contract, for a total amount of
USD 10,000.
38. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Club is liable to pay to the Player the amounts which were
outstanding under the contract at the moment of the termination, i.e. USD 10,000.
39. In addition, taking into consideration the Player’s request as well as the constant practice
of the Single Judge in this regard, the latter decided to award the Player interest at the rate
of 5% p.a. on the outstanding amounts as from the respective due dates until the date of
effective payment.
40. Having stated the above, the Single Judge 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 Single
Judge 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.
41. In application of the relevant provision, the Single Judge held that she 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 Single Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
42. As a consequence, the Single Judge 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 Single Judge recalled that said provision provides
for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
43. Bearing in mind the foregoing as well as the claim of the Player, the Single Judge proceeded
with the calculation of the monies payable to the latter under the terms of the Contract
from the date of its unilateral termination until its end date. Consequently, the Single Judge
concluded that the amount of USD 26,000 (i.e., the residual value) serves as the basis for
the determination of the amount of compensation for breach of contract.
pg. 8
REF. FPSD-14019
44. In continuation, the Single Judge verified as to whether the player had signed an
employment contract with another club during the relevant period of time, by means of
which she would have been enabled to reduce her loss of income. According to the
constant practice of the Single Judge 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 her damages.
45. Indeed, the Single Judge noted that the Player remained unemployed since the unilateral
termination of the Contract.
46. The Single Judge therefore 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 her
previous contract, as a general rule, the compensation shall be equal to the residual value
of the contract that was prematurely terminated.
47. Consequently, the Single Judge decided to award the Player compensation for breach of
contract in the amount of USD 26,000, as the residual value of the contract.
48. Lastly, taking into consideration the Player’s request as well as the constant practice of the
Single Judge in this regard, the latter decided to award the Player interest on said
compensation at the rate of 5% p.a. as of 31 January 2024 until the date of effective
payment.
49. Finally, the Single Judge highlighted that the sums due by the Club to the Player as
established in the present decision shall be paid net of any tax as in accordance with the
Contract.
iii. Compliance with monetary decisions
50. Finally, taking into account the applicable Regulations, the Single Judge 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.
51. In this regard, the Single Judge 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.
52. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must
pay the full amount due (including all applicable interest) to the Claimant within 45 days of
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REF. FPSD-14019
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.
53. 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.
54. The Single Judge 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
55. The Single Judge 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
56. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
57. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 10
REF. FPSD-14019
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Fatou Coulibaly, is accepted.
2.
The Respondent, Al Riyadh SC, must pay to the Claimant the following amount(s):
USD 3,500 net as outstanding remuneration plus 5% interest p.a. as from 1 January
2024 until the date of effective payment;
USD 6,500 net as outstanding remuneration plus 5% interest p.a. as from 31 January
2024 until the date of effective payment;
USD 26,000 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 31 January 2024 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 11
REF. FPSD-14019
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. 12