Labour Disputes
Texto da decisão
REF FPSD-5286
Decision of the
Dispute Resolution Chamber
passed on 12 October 2022
regarding an employment-related dispute concerning the player Counou
Sedjro Paterne
BY:
Sihon Gauci (Malta)
CLAIMANT / COUNTER-RESPONDENT:
Al Lewaa Club, Saudi Arabia
Represented by Ali Abbes &Mohamed Rokbani
RESPONDENT / COUNTER-CLAIMANT:
Counou Sedjro Paterne, Benin
Represented by Pedro Macieirinha
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REF FPSD-5286
I.
Facts of the case
1.
On 31 July 2021, the Saudi club Al Lewaa Club (hereinafter: the Claimant/Counter-Respondent / club)
and the Beninese player, Counou Sedjro Paterne (hereinafter: the Respondent / Counter-Claimant /
player) concluded an employment contract (hereinafter: the contract) valid as from 1 August 2021
until 16 April 2022.
2.
In accordance with art. 5 of the contract, the club and the player agreed upon, inter alia, the
following financial conditions:
-
A monthly salary of USD 2,500
-
A sign-on fee of USD 1,500
3.
According to the club, the player failed to return on the agreed date, whereafter the club sent the
player a second flight ticket via WhatsApp to return/ travel on 15 January 2022 – again the player
failed to return, however the club arranged a third flight ticket (17 January 2022), for the player to
return and resuming training with the club, however to no avail.
4.
On 25 January 2022, the club sent a termination notice to the player, stipulating the following:
“We remind you that on 31/07/2021 you signed an employment contract for professional player with
Club ALLEWA started on 01/08/2021 until 16/04/2022.
On 20 December 2021, you asked the club to return to your country for few days to renewal your
passport and to do some urgent administrative matters.
Acting with a good faith, the club grant you a flight ticket round trip Riyadh Cotonou Riyadh from
26/12/2021 until 06/01/2022.
Unfortunately, you did not come back on the fixed time. Due to its needs of your service as a foreign
player, the club send you via his Professional director a second ticket
Sadly, you did not come back to Saudi Arabia despite repeated attempts by the club and multiple flight
tickets that were sent to you.
Given this situation and your insistence not to return to Saudi Arabia and to respect the contract which
seriously harms the club, the latter did not have any other choice than to terminate the contract with
just cause according to article 14 of FIFA RSTP.
Accordingly, due to your behaviour and repeated breach of your contract , the club Inform you of the
immediately termination of the contract signed between the parties on 31.07.2021 for just cause and
Inform you that the club preserves it right to claim for compensation according to article 17 of FIFA
RSTP”
5.
The player did not find new employment.
II. Proceedings before FIFA
6.
On 25 February 2022, the club 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 club
7.
According to the club, it had just cause to terminate the contract of the player and that pursuant
to art.17 of the Regulations the player shall be condemned to pay compensation to the club, in this
regard the club mentioned the following.
-
-
-
-
8.
“It’s important to add that the claimant can only recruit two the foreign players. The long and
unjustified absence of the player caused a harm damage to the club because it stayed with only
one foreign player.
By refusing to take the flight and being absent from that date in all training session without giving
any clarification, the player has showed an aberrant lake of interest towards the club.
In this context, by leaving the club and refusing to resume training, the player is effectively
breaching the contract without just cause.
he player has already been absent for 3 official matches and several training sessions. Also, since
he did not come back to Saudi Arabia, he was expected to be absent for other important matches
The club was forced to play without a striker which affected the offensive team's performance.
After 35 days of absence and despite the clubs attempts without any reaction from the player,
the claimant sent a termination notice to the player by means of which it considers that the
contract was terminated by the club for just cause.
The bad behavior of the player and its breach of the principle of maintenance of contractual
stability by refusing to honor his contract by being absent during a long time without any
acceptable reasons constitutes a just cause for the claimant to terminate the contract for just
cause.”
The requests for relief of the club were that the player pay it the amount of USD 11,500
corresponding to the residual value of the contract (USD 2,500 X 4) plus the sign-on fee (USD 1,500),
plus 5% interest p.a. as from 25 January 2022 i.e., date of termination of the contract.
9.
Additionally, the club requested that sporting sanctions pursuant to art.17 par. 3 be imposed on
the player for breach of the contract during the protected period – a six-month suspension.
b. Position of the player and counterclaim
10. The player rejected the claim of the club and lodged a counterclaim as it argued that the Club was
“acted in a manner designed to induce a breach of the contract signed with the Player - acting like that,
the Claimant used an abusive conduct and that it had no valid reason for the unilateral contract
termination.”
11. The player mentioned that he was not able to return to Saudi Arabia on the scheduled date for
exceptional reason beyond his control. He indicated that he was not responsible for the delay to
return to the club as he required a visa, according to the player to resolve the situation regarding
his visa he had to hand in his old passport and get a new one. In this regard the player indicated
that the “authorities of the Player's home country delayed the delivery of the new passport to the
Respondent Player and this fact prevented the Player to get a visa. In fact, without his passport and visa
the Player was unable to travel.”
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12. The player further mentioned that he duly informed the club of this situation and requested the
club’s help, he never ignored the club “He was just nervous because it was taking more days to him to
have it.”
13. Moreover, the club failed to send a prior default notice to the player – it did not previously warn
the player in writing of his alleged unacceptable conduct or attitude.
14. Additionally, the player’s authorised absence from the club was due to the need to obtain a new
passport in the player's country and a visa.
15. Furthermore, according to the player the club must request the player to return to the club and
set a reasonable deadline, in the present case, the justified absence of the player was of a short
period of time. The player had never made a final decision not to return to the club.
c.
Counterclaim
16. The player indicated that the club terminated the employment contract without just cause and
therefore should be held liable to pay him compensation.
17. The requests for relief of the player were as follows.
-
the claim of the club shall be rejected
-
The counterclaim shall be accepted, and the club shall be liable and condemned to pay
compensation to the player in the total amount of USD 11 500 for the termination of the
contract without just cause by the club, corresponding to the residual value of the contract,
plus 5% interest p.a. from 26 December 2021 until effective payment.
d. Reply of the club to the counterclaim
18. The club rejected the counterclaim of the player.
19. According to the club, the player had a valid visa with multiple entries in place.
20. As to the alleged unpaid salaries, the club alleged that “despite the player long and unjustified
absence, make an urgent payment to the player by Western Union of USD 1,500 despite being absent
and normally not deserving of any payment and was sent to the player by WhatsApp.”
21. Referring to the principle of burden of proof, the club was of the opinion “that the player alleged
that the authorities in his home country delayed to deliver the new passport- the player did not provide
FIFA DRC with any proof of that allegations and that the player did not provide the club with any valid
reason for his long stay in his Country.”
22. The club mentioned that “after 35 days of unjustified absence and despite the clubs attempts without
any reaction from the player, the claimant sent a termination notice to the player by means of which it
considers that the contract was terminated by the club for just cause.”
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
23. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as
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 28 February 2022 and submitted
for decision on 12 October 2022. Taking into account the wording of art. 34 of the June 2022 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.
24. 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 (July 2022 edition), the Single Judge is competent to deal with the matter
at stake, which concerns an employment-related dispute with an international dimension between
a Saudi Arabian club and a Beninese player.
25. 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 (July 2022 edition), and considering that
the present claim was lodged on 28 February 2022, 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
26. 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
27. Her 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
28. The foregoing having been established, the Single Judge went on to analyse the allegation of the
club – disputed by the player – that the absence of the player of 35 days, without authorisation or
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justification, consisted of a breach of contract on his part and therefore it had just cause to
terminate the contract.
29. In view of the foregoing, the Single Judge referred to art. 13 par. 5 of the Procedural Rules,
according to which a party that asserts a fact has the burden of proving it, and went on to analyse
the documentation provided by the parties in support of their allegations.
30. In this respect, the Single Judge noted that the club provided copies of multiple flight tickets which
was issued to the player in order for him to return to Saudi Arabia, as well as copies of a valid
passport and visa. The player on his account argued that due to “exceptional circumstances beyond
his control” he could not return to Saudi Arabia and that he informed the club the reasons for his
inability to return to the club, moreover he argued that the club failed to send a default notice to
him or a warning prior to termination of the contract.
31. In this scenario, the Single Judge recalled the long-standing jurisprudence of the Dispute
Resolution Single Judge, according to which only a breach or misconduct which is of a certain
severity justifies the termination of a contract without prior warning. In other words, only when
there are objective criteria which do not reasonably permit to expect the continuation of the
employment relationship between the parties, a contract may be terminated prematurely. Hence,
if there are more lenient measures which can be taken in order for an employer to assure the
employee’s fulfilment of his contractual duties, such measures must be taken before terminating
an employment contract. A premature termination of an employment contract can only be an
ultima ratio.
32. With the above in mind and after having carefully analysed the parties’ submissions, the Single
Judge concluded that the club failed to consider more lenient measures i.e. disciplinary sanctions
or issuing of a prior warning to the player to assure the fulfilment of his contractual duties prior to
terminating his contract, therefore under the circumstances of the present case, namely, the
failure of the player’s return after 35 days cannot be deemed as a substantial breach of an
employment contract, capable of triggering the consequences of an unlawful termination. The
Single Judge also underlined that, contrary to the club’s argumentation, the player submitted
enough evidence to demonstrate that the club was fully aware of his difficulties to return to the
club, as per the WhatsApp correspondence between the parties
33. Taking the above into account the Single Judge rejected the claim of the club and concluded that
it had terminated the contract of the player without just cause on 25 January 2022.
34. Moreover, the Single Judge established that the player duly substantiated his counterclaim, hence
the counterclaim of the player is accepted.
ii. Consequences
35. Having stated the above, the Single Judge observed that the outstanding remuneration of the
player at the time of termination of the contract, are equivalent to two monthly salaries under the
contract, amounting to USD 5,000.
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36. 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 5,000
37. In addition, taking into consideration the player’s request, the Single Judge decided to award the
player interest at the rate of 5% p.a. on the outstanding amounts as from the respective due dates.
38. 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.
39. In application of the relevant provision, the Single Judge 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 Single Judge established that no such
compensation clause was included in the employment contract at the basis of the matter at stake.
40. 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.
41. 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 player 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 6,333.33 (i.e. the residual value of the contract February 2022 until 16 April 2022 )
serves as the basis for the determination of the amount of compensation for breach of contract.
42. 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 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 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 Single Judge noted that the player remained unemployed since the unilateral
termination of the contract.
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44. The Single Judge 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. Consequently, on account of all of the above-mentioned considerations and the specificities of the
case at hand, the Single Judge decided that the club must pay the amount of USD 6,333 to the
player which was to be considered a reasonable and justified amount of compensation for breach
of contract in the present matter.
46. Lastly, taking into consideration the player’s request, the Single Judge decided to award the player
interest on said compensation at the rate of 5% p.a. as of 9 April 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
47. 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 her 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.
48. 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.
49. Therefore, bearing in mind the above, the Single Judge 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 player, 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 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.
51. 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
52. 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.
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53. 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.
54. Lastly, the Single Judge 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/Counter-Respondent, Al Lewaa Club, is rejected.
2.
The claim of the Respondent/Counter-Claimant, Counou Sedjro Paterne, is partially accepted.
3.
The Claimant/Counter-Respondent, Al Lewaa Club, has to pay to the Respondent/CounterClaimant, the following amount(s):
(a) USD 5,000 as outstanding remuneration plus 5% interest p.a. as from the respective due
dates until the date of effective payment as follows:
-
on the amount of USD 2,500 as from 1 January 2022
-
on the amount of USD 2,500 as from 1 February 2022
(b) USD 6,333.33 as compensation for breach of contract without just cause plus 5% interest p.a.
as from 11 April 2022 until the date of effective payment.
4.
Any further claims of the Respondent/Counter-Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
6.
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 Claimant/Counter-Respondent shall be banned from registering any new players, either
nationally or internationally, up until the due amount is paid. The maximum duration the
ban shall be of 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.
7.
The consequences shall only be enforced at the request of the Respondent/CounterClaimant in accordance with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status
and Transfer of Players.
8.
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).
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