Labour Disputes
Texto da decisão
REF. FPSD-14553
Decision of the
Dispute Resolution Chamber
passed on 27 March 2025
regarding an employment-related dispute concerning the player Fabrice
Olinga Essono
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Mario FLORES CHEMOR (Mexico), Member
Michele COLUCCI (Italy), Member
CLAIMANT/ COUNTER-RESPONDENT:
Fabrice Olinga Essono, Cameroon
Represented by David Winter
RESPONDENT/ COUNTER-CLAIMANT:
FC Botosani, Romania
pg. 2
REF. FPSD-14553
I. Facts of the case
1.
On 1 July 2023, the Cameroonian player, Fabrice Olinga Essono (hereinafter: the Player or
the Claimant/ Counter- Respondent), and the Romanian club, FC Botosani (hereinafter: the
Club or the Respondent/ Counter-Claimant) entered into an employment contract
(hereinafter: the Contract) valid as from 1 July 2023 until 30 June 2025.
2.
In accordance with the Contract, the Club undertook to pay the Player the following
amounts:
“1. The Club undertakes to pay the player, in exchange for his professional services, performed
for the benefit of the club between 01.07.2023 and 30.06.2024, a total gross remuneration of
78.933 Euro, composed of:
-
Net amount: 66,000 Euro/year, respectively, 5,500 Euro/month;
-
CASS+CAS: 5,040 Euro/year;
-
Tax: 7,893 Euro/year;
2. The Club undertakes to pay the player, in exchange for his professional services, performed
for the benefit of the club between 01.07.2024- 30.06.2025, a total gross remuneration of 85,600
Euro, composed of:
- net amount: 72,000 Euro/year, respectively, 6,000 Euro/month;
- CASS+CAS: 5,040 Euro/year;
- Tax: 8,560 Euro/year.” (quoted verbatim)
3.
On 8 July 2023, the Player travelled to Paris and the flight ticket was booked by the Club.
4.
On 14 July 2023, the Player obtained his work permit/visa in Romania. His passport’s
expiration date was 9 October 2023.
5.
According to art. 28 of the Emergency Ordnance N. 194/2002 on the Regime of Aliens on
Romania, “The travel document in which the visa is to be applied must have been issued within
the last 10 years, and its validity must exceed the validity of the requested visa by at least 3
months.”
6.
On 28 August 2023, the Player sent a WhatsApp message to the Club’s representative,
inquiring about when he could schedule his visa appointment and noting that he needed
pg. 3
REF. FPSD-14553
to renew his passport. Allegedly, the Player had to go to the embassy of Cameroon in
Brussels to renew his passport.
7.
On 1 September 2023, the Player sent a new WhatsApp message to the Club’s
representative asking “What time you will be at the stadium? What about the ticket to go to
Belgium? For the salary is ok today? I have to speak directly with the coach because I have to go
to Belgium?” (quoted verbatim). The Club’s representative answered that they would speak
in an hour.
8.
On 2 September 2023, the Player asked the Club via the same chat on WhatsApp whether
everything was arranged for the flight tickets to Belgium.
9.
On 4 September 2023, the Player sent a reminder to the Club and mentioned that he had
an appointment for his passport on 6 September 2024. The Club asked whether the
appointment was in Brussels.
10. On 4 September 2023, the Club sent the Player the confirmation of the flight ticket from
Romania to Brussels for 5 September 2023.
11. On 8 September 2023, the Player initiated the process to get a long-term visa in Romania.
The Player and the Club received a notification from the authorities that his request was
being processed.
12. On 10 October 2023, the Player had an appointment with the relevant authorities in
Brussels regarding his passport.
13. Allegedly, on 6 November 2023, the Player sent a WhatsApp message to the Club asking
for the payment of his salary for October 2023. The Club responded that they could not
pay him before the end of the month (i.e., October 2023).
14. Reportedly, the Player had a second appointment in the Cameroonian Consulate in Paris
on 27 November 2023.
15. On 20 November 2023, the Club sent a letter to the Player ”for the attention of the
Embassy,“ (without specifying which embassy) in which it was explicitly mentioned that the
Player was not allowed to leave the training camp on 28 November 2023.
16. On 13 December 2023, the Player sent a WhatsApp message to the Club, requesting an
amicable solution to terminate the Contract. In response, the Club asked the Player to
outline his demands to reach a mutual agreement. The Player then asked the Club to
communicate directly with his agent. In addition, the Club informed the Player that they
could pay three salaries.
pg. 4
REF. FPSD-14553
17. The Player informed the Club that they need to pay his overdue salaries for November and
December 2023. He also asked that if the Club wished to terminate the Contract, they must
negotiate with his agent. Additionally, the Club indicated that they could not offer any
further compensation. In particular, the parties had the following conversation (quoted
verbatim):
Player: “[…] Since I have been at the club I have always had exemplary behavior but I
understand that sportingly and the development of things between the club and me, you want
to put me out and I respect that. We need to find a solution that suits us both. I don’t need to
be disrespectful and I have never disrespected anyone at the club. My lawyer will contact you
and let’s find a solution.”
Club: “Ok If you want I can speak with you. Please tell me what your demands are and let’s
reach a mutual agreement.”
Player: ”Speak with him is better, I still have 1 year and 7 months.”
Club: “I know. I can pay 3 salaries if it is ok for you. Until Friday I can pay.”
Player: “You know that I respect you a lot but don’t take me for a beginner. You have to pay
me until Friday November and December. The if you want to break my contract 1 year 6
months. You fix with him.”
Club: “I will pay you November, December and 3 more months until Friday.”
Player: “Pay me November and December. Find an agreement with my lawyer but he will not
accept three months, impossible.”
Club: “Ok and I will tell your lawyer the same. Please understand that I can’t do more.
18. On 24 December 2023, the Player got arrested at the airport from the Romanian authorities
before leaving for his Christmas holidays as he had illegally remained in Romania for more
than 73 days. The Player received a ban for entering the Romanian territory for 6 months.
19. Allegedly, on the same day, the Player sent a message to the Club informing them about
the arrest and the 6-month ban. The Club told the Player that they will try to solve the
problem, but they need the Player’s new passport.
20. On 28 December 2023, the Player received his new passport.
21. On 3 January 2024, the Player sent an email to the Club stating the following (quoted
verbatim):
“First, please note that when I left Romania in December 2023, I received a ban from re-entering
the country for 6 months as the club has failed to provide me with the correct permits. In
pg. 5
REF. FPSD-14553
particular, the club never arranged a work permit for me. I already told the President of the club
of this incident, but I did not receive a reply from him. In this regard, I kindly request the club to
regularize the situation within the next 7 days so I can return to Romania and render my services
to the club as per the contract.”
22. In addition, in the same letter, the Player put the Club in default requesting the amount of
EUR 13,750 for his outstanding salaries and granted it a 10-day deadline to comply with its
obligations. The default notice further stated that, in case that the Club would not comply
with its obligation, the Player would terminate the Contract.
23. On 5 January 2024, the Club sent a letter to the Player explaining that the Club had taken
all the necessary measures to ensure the issuance of the visa and that it was the Player’s
fault that the passport was not renewed on time and consequently the visa could not be
issued. In addition, regarding the overdue amount, the Club stated that only EUR 4,923
remained outstanding from the salary of December 2023.
24. On 11 January 2024, the Club sent an email to the Belgian Consulate in Romania, asking
them to complete the Player’s application for the long-term visa that was initiated on 8
September 2023, as the Player had now renewed his passport.
25. On 22 January 2024, the Club followed up with the Belgian Consulate reiterating its request
from 11 January 2024.
26. On 25 January 2024, the Player sent an email to the Club informing it that the Romanian
Embassy had gotten in contact with him, and he had an appointment at the Romanian
Embassy in Brussels on 26 January 2024.
27. On 2 February 2024, the Club sent a warning to the Player, stating that he has not fulfilled
his contractual obligations, as he had been absent since 4 January 2024, (i.e., for 29 days)
from trainings, medical visits, and official and friendly matches. In addition, the Club asked
him to be present at the training of 5 February 2024. In the alternative, the Club would
initiate disciplinary proceedings and sanction the Player.
28. On 5 February 2024, the Club sent a letter to the Player in which it explained the steps that
the Club had taken in order to obtain the long-term visa. In particular, the Club explained
the following:
-
“On 12.07.2023, following the request made by FC Botosani, the General
Inspectorate for Immigration issued Work Notice no. 2367899 necessary to obtain
the long-stay visa/residence permit, as a permanent worker, for Mr. Olinga Essono
Fabrice.
pg. 6
REF. FPSD-14553
-
On September 8, 2023, FC Botosani requested obtaining a long-stay visa for Mr.
Olinga Essono Fabrice through the eviza.mae.ro application, file registered with
no. E14177123888781 at the Romanian Embassy in Brussels.
-
Due to the fact that the file was incomplete, the passport did not have the required
validity, it expires on October 9, 2023, the procedure was suspended until the visa
file is completed.
-
On 11.01.2024, following the fact that you sent us the new passport, we resumed
the procedure, sending it to the Embassy and asking the authorities to take note
of the completion of the visa file.
-
On 22.01.2024, we requested the Embassy in Brussels to communicate
information about the status of the file.
-
On 25.01.2024, we were contacted by phone by the representatives of the
Romanian Embassy in Brussels, in order to schedule your appointment for the
interview to obtain the visa, at which you had to present yourself with the
documents that we uploaded in the application.
-
I contacted you urgently and communicated this information and confirmed to me
that you were called and notified directly, by phone, and you set the meeting the
next date 26.01.2024, to present yourself with the documents, which we- you
confirmed that you have them.
-
Since January 26 you have not communicated anything about the outcome of the
meeting with the Embassy representatives.
-
The club gave proof of good faith, at all stages of the procedure for obtaining the
long-stay visa and several times these aspects were very clearly stated to Mr.
Olinga Essono Fabrice, but unfortunately, he did not undertake any procedure for
changing the passport that expired on October 9, 2023, and the new passport
issued on December 28, 2023, was sent to us by e-mail only on January 10, 2024,
as can be verified.
-
Following this fact, the electronic file registered under no. E14177123888781 could
not be solved in time by the Romanian authorities in Brussels so that we can obtain
the long-stay visa for the employment of Mr. Olinga Essono Fabrice.
-
Regarding the ban applied to Mr. Fabrice Essono Olinga on December 24, 2023,
please be informed that this situation is due to his exclusive fault as he could not
provide us with the necessary documents (a new passport issued by the
Cameroonian authorities) and FC Botosani was thus made unable to obtain a longstay visa for employment in a timely manner.
pg. 7
REF. FPSD-14553
-
Regarding your malicious remark, about the "inaction of the Club", we regret to
inform you that yes, it was inaction, even negligence, but on your part, Mr. Olinga,
because you treated the lack of action too easily of identification act - the passport,
so necessary but which you did not obtain in a timely and legal manner.
-
In conclusion, we ask you to comply with the summons made on February 2, 2024,
and to present yourself at the headquarters of the FC Botosani Club, urgently, for
the medical visit, the resumption of the training program and the participation in
the Team’s matches”.
29. On 7 February 2024, the Club sent a new letter to the Player stating his non-compliance
with the previous letters and warnings, inviting him to the Club’s headquarters to discuss
his contractual situation with the Board of Directors. The Club reiterated that it was solely
the Player’s fault for not having a valid passport from 9 October 2023, until 10 January 2024,
which led to his 6-month ban from entering the Romanian territory.
30. On 13 February 2024, the Player’s long-term visa was rejected, as he had received a 6month ban from the Romanian territory.
31. On 28 February 2024, the Player sent a default notice to the Club requesting the payment
of EUR 11,800, and granting the Club a deadline of 10 days to comply with its default.
32. Allegedly, on 18 April 2024 the Parties concluded a mutual termination agreement
(hereinafter: the Agreement) according to which the Contract “ceases to produce effects
starting from 10 April 2024”. In addition, the Club purportedly undertook to pay the Player
the following amounts:
-
EUR 22,000: payable on the date of signing this additional act;
-
EUR 22,000: payable to the Player by 1 May 2024.
33. According to the Agreement, the parties also agreed on the following:
“4. If the Club does not pay the first instalment according with the date mentioned in this
additional act (EUR 22,000- amount to be paid on the date of signing of this agreement) this
shall render this Agreement null and void. In this case, the Sports Activity Contract no.
581/01.07.2023 will continue to produce effects between parties following the fulfilment of their
contractual obligations.
5. If the Club does not pay the second instalment according with the date mentioned in this
additional act (EUR 22,000- amount to be paid on 1 May 2024) and such non-payment exceeds
a period of 3 (three) consecutive business days, the Player shall refer this matter to FIFA Football
Tribunal to request the obligation of the club to pay the amount of EUR 22,000.
pg. 8
REF. FPSD-14553
6. Excepting the obligation to pay the amounts mentioned in the art. 2 of this additional act, the
parties declare that they no longer have any other financial, material or other claim, present,
past or future, against each other, in relation to the Sports Activity Contract no. 581/01.07.2023
(registered with Romanian Football Federation in Football Connect application under the no.
[…]”
34. However, the Agreement was not signed by either party.
II. Proceedings before FIFA
35. On 3 May 2024, the Player filed the claim at hand before FIFA. A summary of the parties’
respective positions is detailed below.
a. Claim of the Player
36. The Player alleged that the Club did not take the necessary measures to ensure that the
Player could renew his passport and therefore receive the long-stay visa in Romania.
37. In particular, the Player alleged that the Club did not grant him the necessary permissions
to leave the Club and travel to Brussels in order to renew his passport at the Cameroonian
Embassy.
38. The Player also alleged that if the Club had authorised him to leave the training camp in
September 2023, as requested, the passport would have been renewed on time and he
would not have been arrested and banned from the Romanian territory.
39. Regarding the warnings sent by the Club, the Player argued that they were unreasonable
as the Club was aware that the Player had receive a 6-month ban from the Romanian
territory and he could have not possibly been able to attend the trainings and matches.
40. Finally, the Player claimed that he did not receive the salaries corresponding to the months
of January and February 2024.
41. Based on all the above, the Player alleged that he terminated the Contract with just cause.
42. Finally, the Player requested the following relief:
-
EUR 22,000 corresponding to the salaries of January, February, March and April
2024 (EUR 5,500 x 4 months);
-
EUR 1,600 corresponding to the rent of January, February, March and April 2024
(EUR 400 x 4 months);
pg. 9
REF. FPSD-14553
-
EUR 88,600 corresponding to the residual value of the Contract [(EUR 5,500 x 2
months) + (EUR 6,000 x 12 months)] + (EUR 400 x14 months).
b. Reply of the Club
43. In its reply, the Club alleged that the Player did not have just cause to terminate the
Contract.
44. Firstly, the Club alleged that the passport renewal was exclusively the Player’s responsibility
and that the Club cooperated fully with him in all the processes that he had to follow.
45. The Club pointed out that the Player tried to mislead FIFA by not mentioning that the Club
booked 2 flight tickets for the Player as requested by him. The first flight ticket was booked
for Brussels for 5 September 2023 and the second one for Paris for 8 July 2023.
46. In addition, the Club alleged that in the period between July and December 2023, the Player
left Romania many times with the Club’s approval, but the Club did not have more
information regarding his travels.
47. The Club also stated that the Player informed the Club that he wanted to retire and that
the parties tried to find an amicable solution for the termination of their contractual
relationship.
48. Furthermore, the Club alleged that it only knew about the Player’s arrest and ban on 3
January 2024.
49. Following the Player’s ban, the Club took all the necessary measures to ensure that the
Player could get the extended-stay visa approved by the relevant authorities in Romania.
50. Regarding the overdue salaries, the Club stated that the Player never returned to Romania
despite the Club’s warnings and convocation. He did, however, participate in an online
meeting to discuss his situation, but no solutions were reached.
51. Based on the above, the Club alleged that the Player did not have just cause to terminate
his Contract and that “he was never interested to support the Respondent’s efforts to obtain
the visa in a proper time to be available for the training session and the official games of the
club”.
52. In particular, the Club claimed that it was always aware and responsible regarding its
contractual obligations for getting the long-stay visa for the employment of the Player but
it could not proceed without a valid passport, which was exclusively the Player’s
responsibility to obtain.
pg. 10
REF. FPSD-14553
53. The Club also argued that it allowed the Player to leave the country multiple times in the
period between July and December 2023, but despite the trips, the Player did not renew
his passport.
54. Regarding the overdue salaries and compensation requested by the Player, the Club
invoked the principle of exceptio non adimpleti contractus. Considering that the Player was
not physically at the Club from January until the termination of the Contract due to the ban,
for which he is exclusively responsible, “he did not provide any activity for the Respondent’s
benefit […] and did not perform his contractual obligations because of his own fault”.
55. Finally, the Club requested the following relief:
“To rule that the Claimant terminated the Employment Contract (and its Addendum) without just
cause.
Consequently, to fully reject the Claimant’s Claim.
To fully accept the Counter- Claimant’s counterclaim.
Therefore, to condemn the Player to pay the Counter- Claimant the amount of EUR 83,600
(Eighty- Three Thousand and Six Hundred) net plus interest at a rate of 5 percent per annum on
the aforesaid amount for the period from 3 June 2024 until the date of effective payment.
To impose on the Player a six-month restriction on playing in official matches.
In the alternative
To partially accept the Claimant’s claim in so far as to award the Claimant with a compensation
of symbolic nature only.
To otherwise reject the Claimant’s Claim.
Therefore, to find that no sporting sanctions shall be imposed on the Respondent.
For the effect of the above, to state that the Claimant shall be condemned to pay any and all
costs of the present proceedings, if any.”
c. Replica of the Player
56. The Claimant/Counter-Respondent insisted on his initial position that the Club did not give
authorization to the Player to leave the premises and therefore he was not able to travel
back to Brussels for the renewal of his passport.
pg. 11
REF. FPSD-14553
57. Regarding the flight tickets provided by the Club and not mentioned in the Player‘s initial
submission, the latter explained the following:
-
For the flight ticket from July 2023 to Paris, the Player explained that this ticket was
intended for him to go back home and bring his last belongings to Romania to
complete his move. He also alleged that “This one-way ticket (absence of the return
ticket) proves that the final destination was Paris (Beauvais) and not Brussels, knowing
that the Claimant needed tickets for Belgium, and not France.”
-
Regarding the flight ticket to Brussels, the Player confirmed that he went to Belgium
and explained that “once at the Embassy, they told him they had administrative issues
and couldn’t deliver the new passport”.
58. He further explained that this was the reason he received two additional appointment
notifications, for 10 October 2023 and 27 November 2023.
59. The Player also reiterated that he was forbidden from leaving the training camp on 28
November 2024.
60. Finally, the Player requested the following relief:
“Fully admit the Claimant’s and Counter- Respondent’s Claim;
Reject the Respondent’s and Counter- Claimant’s Claim;
To condemn FC Botosani to pay to the Player Fabrice Olinga:
-
-
The amount of EUR 35,400 for outstanding salaries from January to June 2024, with
interest at 5% per annum from April 30, 2024 until actual payment:
o
EUR 33,000 corresponding to salaries from January to June 2024 (EUR 5,500 x
6)
o
EUR 2,400 corresponding to rent from January to June 2024 (EUR 400 x6)
The amount of EUR 76,800 in compensation equivalent to the residual value of the
prematurely terminated contract, together with interest at 5% per annum from April
30, 2024 until actual payment:
o
EUR 76,800 corresponding to the residual value of the contract [(6,000x 12) +
(400x 12)].
pg. 12
REF. FPSD-14553
To ban the Club from registering any anew players, either nationally or internationally, for
two entire and consecutive registration periods.”
d. Duplica of the Club
61. Despite being invited to do so, the Club did not provide its final comments.
e. Club’s additional comments concerning the Interim Regulatory
Framework
62. On 4 February 2025, the FIFA general secretariat invited the Club to provide any additional
comments they may have exclusively in relation to the application of the Interim Regulatory
Framework.
63. In this regard, the Club provided the following response:
“Regarding to the aspects mentioned in your letter we kindly inform you that we considered that
the amount requested in our counter claim is covering the prejudice suffered by the club as a
consequence of the fact that the player decided to breach unilaterally his contract with the club.
We will emphasize that club purpose was to use player in order to achieve its goals for the season
2023/2024. More than this we can specify that the claimant was a non- UE player and the Club
was forced to block a position in its list for non -UE players for the entire season while the
Claimant refused to come back to Botosani in order to continue his activity with the club.”
f. Player’s additional comments concerning the Interim Regulatory
Framework
64. In view of the Club’s position, the Player provided the following response (quoted verbatim):
“ […] In this regard, we wish to reiterate that the termination of Mr. Olinga’s contract was solely
due to the club’s misconduct, and not a unilateral decision by the player. The facts clearly
demonstrate that:
-
The club failed to assist the player in renewing his visa, despite repeated requests.
-
As a direct result of the club’s inaction, Mr. Olinga was banned from re-entering
Romania, making it impossible for him to fulfil his contract.
-
FC Botosani subsequently ceased salary payments, in further breach of its contractual
obligations.
pg. 13
REF. FPSD-14553
Application of the Interim Regulatory Framework
The newly adopted framework does not change the fundamental principle that a contract
terminated due to a club’s failure to meet its obligations does not result in compensation
claims against the player. On the contrary, the club bears full responsibility for the
circumstances that led to the termination of the contract.
We therefore request FIFA Football Tribunal to:
-
Recognize that the contract was terminated due to the club’s wrongful conduct and
dismiss any compensation claims against Mr. Olinga.
-
Confirm that Mr. Olinga is not subject to any sporting sanctions, as he was prevented
from fulfilling his contractual obligations due to FC Botosani’s negligence.
We now expect a prompt resolution of this dispute and appreciate your attention to this
matter.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
65. First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or DRC) analysed
whether it was competent to deal with the case at hand. In this respect, it took note that
the present matter was presented to FIFA on 3 May 2024 and submitted for decision on 27
March 2025. Taking into account the wording of art. 31 and 34 of the January 2025 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.
66. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (hereinafter: the Regulations) (January
2025 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 Cameroonian player and a Romanian club.
67. 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. 29 of the
Regulations, the January 2025 edition of the Regulations is applicable to the matter at hand
as to the substance.
pg. 14
REF. FPSD-14553
b. Burden of proof
68. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
c. Merits of the dispute
69. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
i. Main legal discussion and considerations
70. The Chamber then moved to the substance of the matter, and took note of the fact that
the parties strongly dispute whether the Player had just cause to terminate the Contract or
not. Whereas the Claimant alleged that the Club did not take the necessary measures to
ensure that the Player could renew his passport and therefore receive an extended-stay
visa in Romania, and that this led to his six-month ban from the Romanian territory and
gave him just cause to terminate his Contract, the Club highlighted that the failure to renew
his passport was attributable only to the Player.
71. The Chamber began by summarizing the most salient facts and observations extracted
from the case file as follows:
-
On 1 July 2023, the parties entered into an employment agreement.
-
In order for the Player to legally remain in Romania, he needed to obtain a longterm visa, which required that his passport be valid for at least three additional
months past the visa expiration date.
-
However, as the passport’s expiration date was earlier than required, the Player
needed to renew his passport before applying for the long-term visa.
-
The Player claimed that he needed to travel to Brussels to visit the Embassy of
Cameroon for the passport renewal.
pg. 15
REF. FPSD-14553
-
On 8 July 2023, the Player travelled to Paris, with the flight booked by the Club.
There is evidence on file indicating that the Player had an appointment with the
Cameroonian embassy in Paris for the purpose of renewing his passport.
-
On 5 September 2023, the Player travelled to Brussels, with the flight also booked
by the Club, and there is evidence confirming that the trip was made to renew his
passport.
-
Despite these efforts, by December 2023, the Player had still not renewed his
passport.
-
On 13 December 2023, the Player sent a WhatsApp message to the Club,
requesting an amicable solution to terminate the Contract. In response, the Club
asked the Player to outline his demands to reach a mutual agreement. The
parties negotiated compensation to terminate the Contract. However, there is
no evidence on file as to how these negotiations ended.
-
There is also no evidence on file that the Club created obstacles to the Player’s
process to renew his passport. There is only one letter on file, in which the Club
expressly prohibited the Player from leaving the training camp the day after his
appointment in the Embassy of Cameroon in Brussels and not the day of the
appointment.
-
On 24 December 2023, a 6-month ban on entering Romania was imposed on the
Player after being arrested at the airport for illegally remaining in the Romanian
territory.
-
The Club was informed about the ban on the same day, 24 December 2023.
-
The Player did not return to Romania after the imposition of the 6-month ban.
Based on the first warning sent by the Club to the Player on 2 February 2024, the
Club mentioned that he had been absent since 4 January 2024.
-
On 2, 5 and 7 February 2024, the Club sent two warnings to the Player asking him
to attend trainings and matches. However, at the time the warnings were sent,
the Club was already duly informed by the Player about his being banned from
entering the Romanian territory for 6 months.
-
On 13 February 2024, the Player’s long-term visa was rejected.
-
On 28 February 2024, the Player sent a default notice to the Club requesting EUR
11,800, without providing the breakdown of this amount.
pg. 16
REF. FPSD-14553
-
Allegedly, on 18 April 2024, the parties concluded the Agreement via email.
-
There is no evidence on file as to what happened after 18 April 2024.
72. In this context, the Chamber acknowledged that its task was to first establish when and
how the Contract was terminated.
73. Regarding the termination of the Contract, the Chamber considered the following facts to
determine the date of the termination:
-
On 13 December 2023, the parties negotiated a mutual termination agreement;
-
On 24 December 2023, the Player got arrested and received a 6-month ban from
the Romanian territory;
-
On 18 April 2024, the parties allegedly concluded a mutual termination agreement,
which was however not signed by any of the parties.
74. In this regard, and despite the fact that the copy of the mutual termination agreement of
18 April 2024 was not signed, the Chamber considered that its existence clearly
demonstrated the fact that the parties were no longer interested in the continuation of the
employment relationship.
75. In other words, the Chamber concluded that while the Agreement was not valid as it did
not contain the parties’ signatures and there was no evidence that it had been duly
concluded, it constituted an undisputed proof of the parties’ intention to depart from the
Contract as of that date.
76. In view of the above, the Chamber decided that the parties mutually departed from the
Contract on 18 April 2024.
77. Having established the above, the Chamber moved to the determination of the
consequences of such mutual departure and in particular, whether the salaries between
January and April 2024 were in fact due.
78. Specifically, the Chamber noted that, due to the Player’s arrest and the imposition of the 6month ban from entering the Romanian territory, the Player was no longer able to be
present at the Club and fulfil his contractual obligations.
79. In general and as a point of departure, the Chamber recalled that a party who is not in
compliance with his contractual obligations is not in a position to demand due compliance
with the contract from the counterparty, without first remedying their own default. In this
regard, obligations under an employment contract are reciprocal in that they are binding
pg. 17
REF. FPSD-14553
on the parties insofar as both sides continue to comply with them. A significant violation
by one side will release the other side from all further duty to abide by that obligation.
80. In the case at hand, the Chamber observed that the Player had to renew his passport in
order to apply for a long-term visa in Romania. However, due to his failure to renew the
passport in a timely manner, he remained in Romania illegally, leading to his arrest and a
subsequent 6-month ban from re-entering the country.
81. The Chamber took note of the Player’s allegation that the Club failed to take the necessary
steps to facilitate his passport renewal and prevented him from traveling to Brussels to
complete the renewal process. Nevertheless, based on the evidence on file, the Chamber
considered that the Club did not hinder the renewal process. On the contrary, according to
the Chamber, the Player himself was primarily responsible for the failure to renew his
passport and secure the long-term visa, which would have allowed him to legally remain in
Romania.
82. As a result, the Chamber considered that the 6-month ban imposed by the Romanian
authorities made it impossible for the Player to return to the Club and fulfil his contractual
obligations.
83. Therefore, the Chamber noted that from the date of the Player’s arrest (i.e., 24 December
2023), he ceased performing his contractual obligations. However, and even if the absence
was deemed justified due to his inability to return to Romania, the Chamber considered
that the absence ultimately resulted from the Player’s own failure to renew his passport.
84. Consequently, the legal principle of exceptio non adimpleti contractus, could be applied in
this case insofar as the Chamber was before a particular situation where the Player did not
appear to have exercised the expected level of care and diligence under the circumstances
with regard to his passport, while the Club had, in the Chamber’s view, demonstrated that
it afforded reasonable opportunity to the Player to exercise such care and diligence.
85. As established above, the Contract was terminated on 18 April 2024, with the Player’s last
salary payment corresponding to December 2023, i.e., prior to the occurrence of the
impossibility to perform his employment obligations. Therefore, as the Player was unable
to fulfil his services due to the impossibility that arose, the Chamber considered that the
Club was not obligated to pay the salaries for the period from January to April 2024.
86. In view of all the above, the Chamber decided that the Player was not entitled to receive
his remuneration for the months of January to April 2024.
87. Consequently, the Chamber decided to reject the claim of the Player as well as the Club’s
counterclaim.
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REF. FPSD-14553
d. Costs
88. 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.
89. 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.
90. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 19
REF. FPSD-14553
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/ Counter-Respondent, Fabrice Olinga Essono, is rejected.
2.
The counterclaim of the Respondent/ Counter-Claimant, FC Botosani, is rejected.
3.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 20
REF. FPSD-14553
NOTE RELATED TO THE APPEAL PROCEDURE:
According to art. 50 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., art. 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 21