Labour Disputes
Texto da decisão
REF FPSD-5574
Decision of the
Dispute Resolution Chamber
passed on 15 September 2022
regarding an employment-related dispute concerning the player Fabrice
Olinga Essono
BY:
Frans de Weger (the Netherlands), Chairperson
Tomislav Kasalo (Croatia), member
Jerôme Perlemuter (France), member
CLAIMANT:
Raja Athletic Club, Morocco
Represented by Tannuri Ribeiro Advogados
RESPONDENT 1:
Fabrice Olinga Essono, Cameroon
Represented by Gaudia Consulting and Legal Services
RESPONDENT 2:
Rio Ave FC, Portugal
Represented by Berlin Sports Law
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I. Facts of the case
1.
On 1 December 2021, the Moroccan club, Raja Athletic Club (hereinafter: the Claimant),
sent the Cameroonian player, Fabrice Olinga Essono (hereinafter: the First Respondent) an
offer for an employment contract (hereinafter: the Offer).
2.
Both the Claimant and the First Respondent signed said Offer; furthermore, the First
Respondent included a remark “pour acceptation” next to his signature.
3.
In accordance with the Offer, the term of the proposed employment contract was as from
1 January 2022 until the end of the 2022/2023 season in Morocco, with the option to
extend for another season – i.e., until the end of the 2023/2024 season (according to the
information available on TMS, the 2022/2023 season runs as from 1 July 2022 until
30 June 2023; no information available for the 2023/2024 season).
4.
Furthermore, in accordance with the Offer, the Claimant undertook to pay the First
Respondent a net annual remuneration, including appearance bonuses, as follows:
-
MAD 800,000, of which MAD 600,000 were guaranteed, for the remainder of the
2021/2022 season;
MAD 2,000,000, of which MAD 1,600,000 were guaranteed, for the 2022/2023 season;
(if contract extended) MAD 2,200,000 for the 2023/2024 season.
5.
After the Offer was signed by both the Claimant and the First Respondent, several
WhatsApp messages were exchanged in which the First Respondent expressed his
satisfaction with regards to agreeing to the Offer and joining the Claimant.
6.
Furthermore, according to the First Respondent, after the Offer was signed, a phone call
between the Claimant and the First Respondent took place in which the latter allegedly
confirmed that said Offer was only an “offer to begin negotiations”, and the signature
thereof was merely a confirmation of receipt. Moreover, in said phone call, the Claimant
allegedly expressed his wish to the First Respondent that the latter should visit Morocco
in order to be introduced to the team and technical staff.
7.
On 6 December 2021, the Claimant requested issuance of a special entry visa to Morocco
for the First Respondent via the Moroccan embassy in Belgium.
8.
On 7 December 2021, the Claimant contacted the Moroccan Consulate in Liège in order
to organise an interview between the Consul and the First Respondent, in order to
accelerate the procedure of obtaining a visa for the latter. Such interview took place on
8 December 2021.
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9.
On 9 December 2021, the First Respondent’s visa was issued, a copy of which was sent to
the latter by the Claimant via WhatsApp.
10. On 17 December 2021, the Claimant purchased plane tickets from Belgium to Morocco
for the First Respondent, with the travel date of 21 December 2021, and forwarded these
to the latter via WhatsApp.
11. On 19 December 2021, the First Respondent raised some questions regarding the Offer
via WhatsApp to the Claimant’s president, stating that he had not received the draft of the
“standard form FRMF contract”. In particular, the following points were raised:
-
Specifying whether the eventual contract was valid for 2.5 years or 1.5 years with the
possibility of extending one more year, as stipulated in the Offer;
specifying whether the salary under the contract was net or gross;
requesting that a copy in Arabic is also provided;
specifying entitlement to image rights and bonuses which were payable in addition to
the monthly remuneration.
12. On 20 December 2021, the Claimant’s president addressed the First Respondent’s
questions, sending a copy of the requested draft, and clarifying as follows:
-
The contract is valid for 1.5 years, with the option to extend one year, in line with the
Offer;
the remuneration is “identical to what is stated in the Offer” (i.e. net);
there is no copy in Arabic and the only valid copy is of the contract is in French;
the Claimant has never entered an image rights agreement and will, therefore, not
include any provisions in the contract to this effect;
bonuses are paid every match (amount not specified).
13. Later that day, the First Respondent informed the Claimant that he no longer intended to
travel to Morocco to join the latter, explaining as follows:
“J’ai essayé d’être correct jusqu’à la fin mais il y’a des choses qui n’ont pas été bien fais. Je ne
pourrais honorer ma parole car ma femme et ma famille on décide autre chose. Merci
beaucoup pour l’intérêt porter à mon image et à ma personne , je serais un supporter de plus
du raja mais je ne voyagerais pas”
(Freely translated into English as follows):
“I tried being fair until the end but there are some things which have not been properly done.
I will not be able to honour my commitment because my wife and my family have
chosen otherwise. Many thanks for the interest in me, I will continue to be a supporter of Raja
but I will not be able to travel to you.”
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14. On the same day, the First Respondent and the Portuguese club Rio Ave FC (hereinafter:
the Second Respondent) signed an employment contract (hereinafter: the Second Contract)
valid as from 1 January 2022 until 30 June 2023.
15. In accordance with the Second Contract, the Second Respondent undertook to pay the
First Respondent an annual remuneration as follows:
-
EUR 39,000 for the remainder of the 2021/2022 season;
EUR 78,000 for the 2022/2023 season.
16. On 21 December 2021, the Claimant discovered via a press release that the First
Respondent and the Second Respondent (hereinafter: the Respondents) had signed an
employment contract (i.e. the Second Contract).
17. On 24 December 2021, the Claimant put the Respondents in default for compensation
due to breach of contract by the First Respondent, and inducement thereto by the Second
Respondent.
18. On the same day, the First Respondent sent a correspondence to the Claimant, stating as
follows:
“Cher président et Membre de la famille du Raja
Juste pour vous confirmer ici que j’ai bien signé l’offre pour prouver que je l’avais bien reçu et
que j’étais honoré par l’intérêt d’un aussi grand club.
Après j’ai décidé de m’engager dans un autre club j’espère que dans le futur nos chemins
pourront à nouveau se croiser
Bonne chance à vous pour la suite.”
(Freely translated into English as follows):
“Dear President and family member of Raja
I hereby confirm that I signed the offer sent by you to prove/confirm its receipt and to
communicate that I was honoured by the interest of such a big club.
Afterwards I decided to sign with another Club.
I hope that our paths will cross again in the future.
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Good luck to you in everything.”
19. On 30 December 2021, the First Respondent sent a further correspondence to the
Claimant via his legal representative, asserting that the Offer which he and the Claimant
signed was not a binding employment contract.
20. On 11 January 2022, the Second Respondent sent an e-mail to the Claimant in which it
informed the latter that it was unaware of the existence of the Offer at the time of signing
the First Respondent.
II. Proceedings before FIFA
21. On 24 March 2022, 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
22. According to the Claimant, the Offer signed on 1 December 2021 constitutes a valid and
binding employment contract, as it contained the essentialia negotii as laid down in the
longstanding jurisprudence of the Dispute Resolution Chamber (hereinafter also referred
to as Chamber or DRC).
23. Furthermore, the Claimant argued that the First Respondent confirmed his intention of
joining the former, in addition to signing the Offer, via the numerous WhatsApp messages
in which he expressed his excitement of joining the Claimant and meeting the rest of the
squad and technical staff.
24. As such, the Claimant asserted that the First Respondent terminated the contract
concluded on the basis of the Offer without just cause, and that the Second Respondent,
by signing a player in breach of his contract, induced such breach, making both
Respondents jointly and severally liable for compensation in line with art. 17 par. 4 of the
Regulations on the Status and Transfer of Players.
25. The Claimant requested compensation in the amount of EUR 612,092, which is calculated
as follows:
-
EUR 470,092, corresponding to the value of the contract purportedly concluded on
the basis of the Offer (or MAD 5,000,000);
EUR 142,000, corresponding to the replacement costs incurred by the Claimant as a
result of the First Respondent no longer joining – in this respect, the Claimant allegedly
signed the Congolese player Kadima Kabangu for a total value of EUR 142,000.
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26. The Claimant requested interest on said amount at the standard rate of 5% p.a. as from
25 December 2021 until the date of effective payment.
27. Additionally, the Claimant requested the imposition of sporting sanctions on the
Respondents for breaching and inducing a breach of contract during the protected
period.
28. Lastly, the Claimant requested that no procedural costs are imposed in the matter at
hand.
b. Position of the First Respondent
29. As a preliminary remark, the First Respondent contested the facts presented by the
Claimant, submitting as follows:
30. The First Respondent submitted that he was receiving a number of offers at the time he
was approached by the Claimant and the Offer was signed, and he was grateful end
excited by the interest of such a big club as the Claimant in signing him. As a result thereof,
the First Respondent argued, the Offer signed on 1 December 2021 was only a
confirmation of having entered negotiations and establishing the key conditions of the
contractual relationship.
31. Furthermore, the First Respondent asserted that the phone call which allegedly took place
between himself and the president of the Claimant further substantiates that the Offer
was only a “first contact” and that it was subject to subsequent confirmation, following
the First Respondent meeting the team and technical staff upon travelling to Morocco and
signing the “actual contract”, i.e., the standard form FRMF contract.
32. The First Respondent also argued that the Offer could not constitute a valid and binding
employment contract as it was intended as a basis/estimation for the contractual
relationship that needed to still be properly concluded, in order for the former to make
an educated choice with regards to the club he would sign with, in accordance with his
family’s needs.
33. In this respect, the First Respondent stressed that he made it clear both by way of
signing the Offer with the indication “pour acceptacion”, as well as in the phone call which
allegedly took place after the Offer was signed that the signature of the Offer did not
constitute the intention of creating legal relations, but should only be seen as a
confirmation that he received the document and that he entered negotiations with
the Claimant. As such, the First Respondent argued, the Offer does not contain all the
requisite essentialia negotii in order to give rise to a valid and binding employment
contract.
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34. The First Respondent also alleged that the Claimant tried to delay the sending of the draft
contract in FRMF standard form until the former would arrive in Morocco, in order to
ensure that he would sign such draft without his agent and/or lawyer present, in Arabic,
a language he did not speak.
35. Moreover, the First Respondent stated that the draft of said standard form FRMF contract
contained substantial changes as to the contractual relationship proposed in the Offer,
and that the Claimant deliberately delayed sending a draft thereof so as to make the First
Respondent sign such draft subject to different conditions without any counsel or
representation, in a language unbeknownst to him.
36. On the basis of the above, the First Respondent dismissed the arguments of the Claimant
and argued that the Offer did not constitute a valid and binding employment contract.
c. Position of the Second Respondent
37. The Second Respondent largely reiterated the position submitted by the First
Respondent, adding that there was no express acceptance when the First Respondent
signed the Contract, as he added the remark “pour acceptation”, which allegedly means
“pending acceptance / to be accepted”, thereby falling short of the standard set by
essentialia negotii.
38. Furthermore, the Second Respondent argued that the messages exchanged between the
Claimant and the First Respondent following the signature of the Offer clearly
demonstrate that the Offer was not the conclusive basis of the eventual contractual
relationship; in this respect, the Second Respondent argued that, had there been a valid
and binding employment contract, there would have been no need to negotiate and agree
upon the terms of the “actual” subsequent contract in standard FRMF form, a draft of
which was sent to the First Respondent by the Claimant.
39. The Second Respondent also argued that, in any case, the Offer should be declared void
because it was purportedly subject to a medical examination, rendering it “impossible,
unlawful and immoral” in line with the principles laid down in Swiss law.
40. It was also pointed out by the Second Respondent that the failure of the Claimant to
request an ITC after the Offer had been signed further highlights that the contractual
negotiations between the latter and the First Respondent were inconclusive and that
there was no valid and binding agreement.
41. As such, the Second Respondent rejected the arguments submitted by the Claimant.
However, the former formulated subsidiary requests in case the Chamber deems that
there was a valid and binding employment contract on the basis of the Offer.
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42. To begin with, the Second Respondent argued that the calculation of compensation
provided by the Claimant should be reduced by the Chamber, on the basis of the fact that
the remuneration stipulated in the Offer is partly conditional on the First Respondent
appearing in 75% of matches, as well as exercising the option to extend the potential
contract until the end of the 2023/2024 season.
43. However, in any case, the Second Respondent argued that, in accordance with the Swiss
Code of Obligations, any compensation due to the Claimant by the Respondents must be
limited to “one quarter of the (former) employee’s monthly salary.”
44. Lastly, as to its own liability, the Second Respondent briefly argued that it was unaware of
the existence of the Offer at the time of signing the First Respondent, submitting as
evidence a screenshot from an unspecified date in January 2022 of the First Respondent’s
file on Transfer Matching System (TMS), after the International Transfer Certificate (ITC)
for the transfer to the Second Respondent had been approved, as well as a copy of the email sent on 11 January 2022.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
45. First of all, 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 24 March
2022 and submitted for decision on 15 September 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.
46. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (July 2022 edition) the
Dispute Resolution Chamber is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
Moroccan club, a Cameroonian player and a Portuguese club.
47. 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 24 March 2022, the March 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
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b. Burden of proof
48. 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 TMS.
c. Merits of the dispute
49. 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
50. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties’ first fundamental disagreement was
whether the Offer, signed by the Claimant and the First Respondent on 1 December 2021,
can indeed be considered as a valid and binding employment contract.
51. 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
(i.e., the Claimant and the First Respondent), 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.
52. In casu, after a thorough analysis of the documentation on file, the Chamber established
that all such elements were included in the copy of the Offer submitted by both the
Claimant and the First Respondent. In particular, such document contains the signature
of both parties, provides for the duration of the employment relationship and the
remuneration payable to the First Respondent. Moreover, the Offer clearly stipulates that
the First Respondent would be employed as a footballer with the Claimant.
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53. At the same time, however, the Chamber took note of the various arguments submitted
by the Respondents in relation to the intention to create legal relations, and as such, the
validity of the Offer signed on 1 December 2021.
54. In particular, the Chamber noted that the Respondents submitted that the remark
included with the signature of the First Respondent, stating “pour acceptation”,
purportedly indicates that the First Respondent did not expressly agree to a valid and
binding employment contract.
55. In this context, the Chamber wished to specify that the remark “pour acceptation” is
generally used to indicate express acceptance of a particular document and the contents
therein, thereby reinforcing the signature of said document, rather than undermining
agreement thereto.
56. This, on its own, was already sufficient in the Chamber’s estimation to give rise to a valid
and binding employment contract. However, the Chamber also considered the additional
arguments raised by the Respondents in turn.
57. On one hand, the Chamber recalled that the Respondents highlighted that there were,
allegedly, several differences in the draft contract in standard FRMF form as from the
original Offer, and that, as a result, the negotiations for a valid and binding employment
contract had not yet been concluded.
58. However, the Chamber noted that neither Respondent elaborated how said draft differed
from the original offer, and wished to point out that, upon closer inspection, the
conditions under the draft of the standard FRMF contract which was subsequently
provided were identical to the Offer. The arguments as to net and gross were dismissed,
as the Chamber considered that the Offer clearly specified that all remuneration was
“net”; similarly, it was noted that the draft was in line with the Offer with regards to not
granting image rights or specifying match bonuses. Lastly, the Chamber wished to recall
that the only copy of the draft agreement was in French, thereby dismissing the
accusation that the Claimant was attempting to lure the First Respondent into signing a
document in Arabic which he did not understand.
59. Thus, and more generally speaking, the Chamber laid down that the “standardisation” of
a “pre-contract” does not affect the validity thereof, provided that the key terms
thereunder remain unchanged, which it considered was the case in the matter at hand.
60. Therefore, the Chamber concluded that the Offer is, in fact, a valid and binding
employment contract (hereinafter: the First Contract) and shall be considered in the case
at stake as the contractual basis of the present dispute.
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61. Having established the foregoing, the Chamber noted that, should there have been a valid
and binding employment contract between the Claimant and the First Respondent, the
lack of just cause of the termination by the latter remained uncontested.
62. In this respect, the Chamber referred to art. 18 par. 5 of the Regulations, which stipulates
that “if a professional enters into more than one contract covering the same period, the
provisions set forth in Chapter IV shall apply”, as well as to its longstanding jurisprudence in
accordance with said article, which has established several times that a player signing
more than one contract for a specific period is only able to honour one of them, thereby
inevitably breaching the contract signed with the other club. De facto, they will be
terminating the latter contract, potentially before execution even begins, and the
provisions in articles 13-17 of the Regulations shall apply. This self-evident conclusion has
been confirmed by CAS:
“If a player enters more than one contract covering the same period and does so before the
first contract enters into force, the DRC considers such behaviour particularly reprehensible.
This explains why sporting sanctions are regularly applied. CAS supports this approach.” (see
reference to CAS 2016/A/4495 Hakan Çalhanoğlu v. Trabzonspor FC; FIFA & CAS 2016/A/4535
Trabzonspor FC v. Hakan Çalhanoğlu)
63. Therefore, as the termination of the First Contract by the First Respondent occurred
without just cause, the latter was held to be liable to bear the potential sporting and
financial consequences of such breach, in line with art. 17 par. 3 of the Regulations.
64. With regards to the Second Respondent’s liability for inducing the breach of contract, the
Chamber took note of the fact that the former did not go beyond contesting the validity
of the Offer as an employment contract in its position in the matter at hand. In particular,
the screenshot of TMS and the e-mail sent to the Claimant, which both took place after
the Second Contract had already been signed, were not considered contributory to
rebutting the presumption that it induced the First Respondent’s breach of contract.
65. As a result, in line with art. 17 par. 4 of the Regulations, the Chamber concluded that the
Second Respondent shall be held jointly and severally liable to bear the potential sporting
and financial consequences of inducing such breach by the First Respondent.
66. Lastly, the Chamber took note of the Claimant’s request for compensation on the grounds
of having incurred additional costs in replacing the First Respondent in the amount of
EUR 142,000 for the player Kadima Kabangu.
67. In this respect, the Chamber noted that the Claimant did not provide a copy of any
transfer agreement for said player, and established that a screenshot of the internet
source transfermarkt.com was insufficient in meeting the burden of proving that the
claimed costs had, indeed, been incurred.
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68. As such, the Chamber held that the claim for compensation of EUR 142,000
corresponding to replacement costs allegedly incurred by the Claimant shall be rejected.
ii. Consequences
69. Having stated the above, the members of the Chamber turned to the calculation of the
amount of compensation payable to the Claimant by the Respondents 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, the fees and expenses paid or incurred
by the former club (amortised over the term of the contract) and depending on whether
the contractual breach falls within the protected period.
70. In application of the relevant provision, the Chamber 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.
71. 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.
72. As a consequence, the Chamber determined that the amount of compensation payable
by the Respondents 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.
73. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber
proceeded with the calculation of the monies payable to the former under the terms of
the contract until its term. Consequently, the Chamber concluded that the amount of
MAD 2,200,000 (i.e., the guaranteed amounts under the First Contract, subject to no
appearance conditions or contractual extensions), shall serve as the basis for the
determination of the amount of compensation for breach of contract.
74. In continuation, the Chamber recalled that the remuneration under a new employment
contract shall be taken into account in the calculation of the amount of compensation for
breach of contract due by a player to his former club. In particular, the Chamber explained
that its standard practice is to calculate the average between the player’s remuneration
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with his former club and his remuneration with the new club, for the exact same period
of time comprised between the early termination of the employment contract with the
old club and the original expiry date of such contract. In case substantial evidence thereof
is provided by the club, the Chamber might additionally grant the damaged club the nonamortised transfer fee paid for the player in breach and/or the actual costs incurred by
the damaged club in order to replace the leaving player.
75. In this respect, the Chamber noted that the First Respondent indeed found new
employment with the Second Respondent, and that, in accordance with the Second
Contract, the former was entitled to a total remuneration of EUR 117,000, or approx.
MAD 1,246,069.29 in the period overlapping with the First Contract.
76. Thus, the Chamber concluded that between the date of early termination of the First
Contract and its original expiry date, the average between the First Respondent’s
remuneration with the Claimant and the Second Respondent amounts to
MAD 1,723,034.65 (i.e. MAD 2,200,000 + MAD 1,246,069.29 / 2).
77. Furthermore, the Chamber recalled that, as the Claimant failed to meet the burden of
proving that it incurred the claimed costs of EUR 142,000 for replacing the First
Respondent, no further compensation shall be awarded on the grounds thereof.
78. Therefore, the Chamber decided to award compensation in the amount of
MAD 1,723,034.65 to the Claimant, which was payable jointly and severally by the
Respondents, which was to be considered a reasonable and justified amount of
compensation for the breach of contract and inducement thereof in the present matter.
79. Lastly, taking into consideration the Claimant’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the former interest on said
compensation at the rate of 5% p.a. as from 24 March 2022 until the date of effective
payment.
iii. Art. 17 paras. 3 and 4 of the Regulations
80. In continuation, the Chamber focused on the further consequences of the breach of
contract in question and, in this respect, it addressed the question of sporting sanctions
against the First Respondent in accordance with art. 17 par. 3 of the Regulations. The cited
provision stipulates that, in addition to the obligation to pay compensation, sporting
sanctions shall be imposed on any player found to be in breach of contract during the
protected period.
81. In this respect, the Chamber referred to item 7 of the “Definitions” section of the
Regulations, which stipulates, inter alia, that the protected period shall last “for three entire
seasons or three years, whichever comes first, following the entry into force of a contract,
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where such contract is concluded prior to the 28th birthday of the professional, or two entire
seasons or two years, whichever comes first, following the entry into force of a contract, where
such contract is concluded after the 28th birthday of the professional.”
82. In this context, the First Respondent was born on 12 May 1996 and the First Contract was
concluded on 1 December 2021. Furthermore, the Chamber recalled that the First
Respondent terminated the First Contract without just cause on 20 December 2021, when
he signed the Second Contract with the Second Respondent. The breach of contract by
the former had, therefore, occurred within the protected period. Consequently, the
Chamber decided that, by virtue of art. 17 par. 3 of the Regulations, the First Respondent
had to be sanctioned with a restriction of four months on his eligibility to participate in
official matches.
83. The Chamber further recalled the contents of the cited article and confirmed that, if the
player is an established member of the representative team of the association he is
eligible to represent, in the case at hand the Cameroonian Football Association, and said
association is participating in a final competition of an international tournament, the
sporting sanctions shall apply.
84. Subsequently, the Chamber recalled that, in accordance with art. 17 par. 4 of the
Regulations, it shall be presumed, unless established to the contrary, that any club signing
a professional player who has terminated his previous contract without just cause has
induced that professional to commit a breach. Consequently, the Chamber pointed out
that the party that is presumed to have induced the player to commit a breach carries the
burden of proof to demonstrate the contrary. In this respect, the Chamber recalled that
the Second Respondent was not able to present enough evidence as to reverse the
respective presumption and is, therefore, to be considered as having induced the First
Respondent to commit such a breach of contract.
85. Consequently, the Chamber decided that, by virtue of art. 17 par. 4 of the Regulations,
the Second Respondent shall be banned from registering any new players, either
nationally or internationally, for the two next entire and consecutive registration periods
following the notification of the present decision.
iv. Conclusion
86. As a result of the aforementioned, the Chamber decided to partially accept the claim of
the Claimant, Raja Athletic Club, and order the Respondents, Fabrice Olinga Essono and
Rio Ave FC, to jointly and severally pay to the former the amount of MAD 1,723,034.65 as
compensation plus 5% interest p.a. as from 24 March 2022 until the date of effective
payment.
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87. A restriction of four months on his eligibility to play in official matches is imposed on the
First Respondent, Fabrice Olinga Essono. This sanction applies with immediate effect as
of the date of notification of the present decision. The sporting sanctions shall remain
suspended in the period between the last official match of the season and the first official
match of the season, in both cases including national cups and international
championships for clubs.
88. The Second Respondent, Rio Ave FC, shall be banned from registering any new players,
nationally and internationally, for the two next entire and consecutive registration periods
following the notification of the present decision.
89. Finally, and given that sporting sanctions have been imposed on both Respondents, the
Chamber held that art. 24 of the Regulations shall not apply in this case, and that, as a
result, failure to comply with the present decision within 30 days of its notification by any
party shall be referred to the FIFA Disciplinary Committee.
d. Costs
90. 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.
91. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
92. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF FPSD-5574
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Raja Athletic Club, is partially accepted.
2.
The Respondent 1, Fabrice Olinga Essono, has to pay to the Claimant MAD 1,723,034.65
as compensation for breach of contract without just cause plus interest of 5% p.a. as from
24 March 2022 until the date of effective payment.
3.
Respondent 2, Rio Ave FC, is jointly and severally liable for the payment of the
aforementioned amount.
4.
Any further claims of the 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 within 30 days of notification
of this decision.
6. Respondent 1 and Respondent 2 shall provide evidence of payment of the due amount in
accordance with point 5. to FIFA via the e-mail address [email protected] duly translated into
one of the official FIFA languages (English, French or Spanish).
7. A restriction of four months on his eligibility to play in official matches is imposed on
Respondent 1, Fabrice Olinga Essono. This sanction applies with immediate effect as of the
date of notification of the present decision. The sporting sanctions shall remain suspended
in the period between the last official match of the season and the first official match of
the next season, in both cases including national cups and international championships
for clubs.
8. Respondent 2, Rio Ave FC, shall be banned from registering any new players, either
nationally or internationally, for the next entire and consecutive registration periods
following the notification of the present decision.
9. If the aforementioned sum plus interest is not paid within 30 days of notification of this
decision, the present matter shall be submitted, upon request of the Claimant, to the FIFA
Disciplinary Committee for its consideration and a formal decision.
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REF FPSD-5574
10. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF FPSD-5574
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
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
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