Labour Disputes
Texto da decisão
REF FPSD-7021
Decision of the
Dispute Resolution Chamber
passed on 13 October 2022
regarding an employment-related dispute concerning the player Lassina Diaby
BY:
Frans DE WEGER (The Netherlands), Chairperson
Stefano SARTORI (Italy), member
Laurel VAURASI (Fiji), member
CLAIMANT:
Player Lassina Diaby, Côte d’Ivoire
RESPONDENT:
Alsharq, Saudi Arabia
REF FPSD-7021
I. Facts of the case
1.
The parties concluded an employment contract valid as from 1 August 2022 until 15 May 2023.
2.
Following art. 5 of the contract, the player was entitled to SAR 12,250 per month net, as well as
to an “advance of costs” in the amount of SAR 15,000.
3.
The contract included the following signatures:
4.
On 21 July 2022, the player, via his legal representative, sent a default notice indicating the
following:
“[You club has] been giving confusing information to Mr Diaby and in particular that the club is not
interested in his services any longer and does therefore not wish to honor the terms of the employment
contract.
The training camp is about to start and officials of the club are ignoring Mr Diaby's messages and
calls.
We would be grateful if you could provide us a written clarification in the next 3 days and, if your
intention is indeed to abide by your contractual commitment”
5.
On 22 July 2022, the club replied from the email [email protected], as follows:
“In response to your letter, we inform you that you have not been contracted by us to play for the 20222023 sports season, as stated in your letter”
6.
On 29 July 2022, the player sent a letter with the following contents:
“We take note of this information and conclude that you are not interested in the player’s services.
Hence, we consider that you have unilaterally terminated the employment contract and we will draw
the legal consequences accordingly.”
7.
The player informed FIFA that he remained unemployed.
II. Proceedings before FIFA
8.
On 9 August 2022, the player Lassina Diaby lodged a claim before FIFA for breach of contract
without just cause and requested the payment of SAR 140,000, plus 5% interest p.a. as from 22
REF FPSD-7021
July 2022, as well as the payment of the legal fees in the amount of EUR 5,000.
9.
In its reply, the club denied the existence of a contract due to the following reasons:
- The contract does not contain “a date of signing by both parties”;
- The signatory, Mr Hassan Ali Al Ablan, was not the club’s president since 19 June 2022;
- It could not find the contract in its files;
- It could not find the contract in its email inbox
10. The club further indicated that Saudi Arabian FA indicated that there is no contract between the
parties, as well as that there is no register in TMS.
11. In his replica, the Claimant explained that the contract contains all the essentialia negotii as per
the jurisprudence of FIFA and CAS.
12. The Clamant stated that it is not relevant that the signatures do not contain a date since the date
of entry into force of the contract is clearly indicated.
13. In its duplica, the Respondent argued that the player “did not provide proof that the former
president, Mr/ Hassan Al-Ablan, signed the contract during his presidency of the club and while
exercising his powers.”
14. The Respondent explained that “the current administration headed by Mr Dawood Al-Muqrin
received contracts from the previous administration, and this contract did not exist and there is no
correspondence between the club and the player.”
15. The club argued that the contract “is only known to the player”.
REF FPSD-7021
III. Considerations of the Dispute Resolution Chamber
a.
Competence and applicable legal framework
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber) 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 9 August 2022 and submitted for decision on 13 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.
2.
Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 (July 2022 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 a Saudi club.
3.
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 (July 2022 edition), and considering that the
present claim was lodged on 9 August 2022, the July 2022 edition of said regulations (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
4.
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.
5.
Merits of the dispute
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 abovementioned 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
6.
The foregoing having been established, the Chamber noted that the parties’ first fundamental
disagreement is whether the document allegedly concluded between the parties (cf. point I to I 3
above) can be considered as a valid and binding employment contract.
REF FPSD-7021
7.
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. In this
respect, the Chamber noted that the contract was signed by Mr Hassan Ali Alablan acting as its
president / CEO.
8.
After a thorough analysis of the documentation on file, the Chamber concluded that all such
elements were included in the document filed by the player. In other words, the Chamber
understood that the legal document concluded by the parties (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. Thus, the Chamber concluded that the
referred document is in fact a valid and binding employment contract and shall be considered in the
case at stake, as the contractual basis of the present dispute.
9.
Subsequently, the Chamber also took due note of the fact that the club challenged Mr Hassan Ali
Alablan’s legal capacity to act on its behalf and pointed out that the arrangements involving the
player did not observe the standard recruitment process generally adopted by the club. In this
regard, the Chamber first recalled that, in accordance with its well-established jurisprudence, the
internal proxy rule of one of the parties to a contract cannot have any legal effect on the validity of
the contract itself, unless the contracting party has been duly informed of such internal rules in
advance. Having established the above, the Chamber was of the opinion that the overall
developments of the case demonstrate that the player could assume in good faith that Mr Hassan
Ali Alablan was duly authorized to act on the club’s behalf and concluded a valid and binding
employment contract with him.
10. In view of the above, the Chamber concluded that the contract was valid and binding, whereas the
club refused to execute it. The Chamber therefore established that the contract was therefore
breached by the Respondent without just cause and, as a result, the player is entitled to
compensation.
ii. Consequences
11. Having stated the above, the members of the Chamber turned their attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
12. Having stated the above, the Chamber 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 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.
REF FPSD-7021
13. 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.
14. 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.
15. As a consequence, the Chamber determined that the amount of compensation payable by the
Respondent to the Claimant 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.
16. 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.
17. In particular, the Chamber noted that the player would earn the following:
SAR 12,250*9.5 (from 1 August 2022 until 15 May 2023) + SAR 15,000 (advance payment) = 116,375 + 15,000 = SAR 131,375
18. Consequently, the Chamber concluded that the amount of SAR 131,375 serves as the basis for the
determination of the amount of compensation for breach of contract.
19. 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 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.
20. In this respect, the Chamber noted that the player remained unemployed since the unilateral
termination of the contract.
21. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case the player
did not sign any new contract following the termination of his previous contract, as a general rule,
the compensation shall be equal to the residual value of the contract that was prematurely
terminated.
22. In this respect, the Chamber decided to award the player compensation for breach of contract in the
amount of SAR 131,375, as the residual value of the contract.
23. 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 the date of the claim until the date of effective payment.
iii. Compliance with monetary decisions
REF FPSD-7021
24. 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.
25. 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.
26. 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 consecutive registration periods
shall become immediately effective on the club in accordance with art. 24 par. 2, 4, and 7 of the
Regulations.
27. The club shall make full payment (including all applicable interest) to the bank account provided by
the player in the Bank Account Registration Form.
28. 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
29. 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.
30. 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.
31. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
REF FPSD-7021
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Lassina Diaby, is partially accepted.
2.
The Respondent, Alsharq, has to pay to the Claimant, the amount of SAR 131,375 as compensation
for breach of contract without just cause plus 5% interest p.a. as from 9 August 2022 until the
date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment (including
all applicable interest) is not made within 45 days of notification of this decision, the following
consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall be of up
to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in the
event that full payment (including all applicable interest) is still not made by the end of the three
entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance with art.
24 par. 7 and 8and 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
REF FPSD-7021
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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