Labour Disputes
Texto da decisão
REF. FPSD-7479
Decision of the
Dispute Resolution Chamber
passed on 24 May 2023
regarding an employment-related dispute concerning
the player LASSANA FAYE
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Stella Maris Juncos (Argentina), member
Alejandro Atilio Taraborrelli (Argentina & Italy), member
CLAIMANT:
Lassana Faye, Netherlands
Represented by Gonçalo Almeida
RESPONDENT:
FC Rukh Lviv,
Represented by Yosyf Ivanyuk
pg. 2
REF. FPSD-7479
I. Facts of the case
1.
On 14 January 2022, the Dutch player, LASSANA FAYE (hereinafter: Claimant or player) and
the Ukrainian club, FC Rukh Lviv (hereinafter: club or Respondent) concluded an
employment contract (hereinafter: contract) as well as an annex, valid as from 14 January
2022 until 31 December 2024.
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly salary
of Ukrainian Hryvnia (UAH) 6,500 (approx. EUR 200).
3.
According to the annex to the contract, the Respondent undertook to pay the Claimant the
following amounts in addition to the contract:
- EUR 7,800 as monthly salary as from 14 January 2022 until 31 December 2022;
- EUR 8,800 as monthly salary as from 1 January 2023 until 31 December 2023;
- EUR 9,800 as monthly salary as from 1 January 2024 until 31 December 2024.
4.
Art. 6.4 of the contract establishes: “The sanctions are applied against the Footballer, who has
terminated the Contract unilaterally without just reason in the way different of this contract, in
the form of the fine in amount of UAH equivalent of 500 000,00 (five hundred thousand) US
Dollars, the claims are made to reimburse to the club of the amounts paid by it to the footballer
and also to reimburse losses (art. 22 of the civil code of Ukraine), including those that were
carried by the club for acquisition and payment for services of other footballer, connected with
non-fulfilment by the footballer of his obligations according to this contract in result of his
termination.”
5.
On 24 February 2022, Russia invaded the Ukraine.
6.
According to the club, on 25 February 2022, the player left Ukraine.
7.
On 11 July 2022, the Claimant put the Respondent in default and requested payment of
USD 45,000, corresponding to the monthly salaries of February until June 2022, until 26 July
2022.
8.
On 20 August 2022, the club proposed a “termination agreement” to the player, according
to which the contractual relationship was terminated and no compensation was paid. Such
draft also included a clause according to which the parties have “no more claims” against
each other and no further payments would be due. The player rejected such proposal.
9.
On 20 August 2022, the club also proposed a different termination agreement, according
to which the club would pay a compensation of EUR 2,455 until 15 September 2022 and
the employment relationship would be terminated. The player rejected such proposal.
10. On 31 August 2022, the player terminated the contract with the club based on the
outstanding remuneration due.
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REF. FPSD-7479
11. On 15 September 2022, the player signed an employment contract with Italian club,
Monopoli 1966, valid as from 15 September 2022 until 30 June 2023, including a total salary
of EUR 31,000 (EUR 3,100 per month). Said contract was terminated on 29 September 2022.
12. On 1 January 2023, the player signed an employment contract with the Canadian club, York
United FC, valid as from 1 January 2023 until 31 December 2023, including a total salary of
Canadian Dollar (CAD) 37,500 (approx. EUR 25,000).
II. Proceedings before FIFA
13. On 15 September 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
14. In his claim, the Claimant requested payment of the following monies:
- EUR 56,000 as outstanding remuneration, corresponding to the months of
February 2022 until August 2022 (7x EUR 8,000), plus 5% interest p.a. as of the
due dates;
- EUR 260,000 as compensation for breach of contract, corresponding to the
residual value of the contract, plus 5% interest p.a. as of the due date.
15. In this framework, the player argued that the club failed to remit his outstanding
remuneration after his default notice and that he did not agree to terminate the contract
to the proposed conditions.
16. Moreover, the Claimant maintained that he never received a request to resume work after
the club restarted its football activities.
17. Therefore, the player held having had just cause to terminate the contract on 31 August
2022.
b. Position of the Respondent
18. In its reply, the Respondent rejected the player’s claim and pointed out that it informed its
foreign players about the contractual situation in connection with the Russian invasion and
the amendment of the RSTP by FIFA.
19. The club submitted copies of two undated letters addressed to the player, according to
which the contract was deemed suspended as from 24 February 2022 until 30 June 2022.
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20. Furthermore, the club maintained having informed the player that
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“the club does not refuse to pay the debt that exists until February 24, 2022 and will
make payments after the situation stabilizes, martial law is lifted and you are able to
come to the club's location.”
“Notwithstanding the provisions of these regulations and unless otherwise agreed
between the parties, a contract of an international dimension between a player or a
coach and a club affiliated to the UAF can be unilaterally suspended until 30 June 2023
by the player or the coach, provided that a mutual agreement with the club could not
be reached before or on 30 June 2022.”
“we do not object on free temporary transfer (loan) of our football player Lassana Faye
(DoB 15/06/1998) to any club on the period till 30/06/2023.”
21. The club further stated that the safety of the players had absolute priority during this
extraordinary period.
22. Moreover, the Respondent argued that the player proposed to unilaterally terminate the
contact, and therefore the club made the proposals on file, which were subsequently
rejected.
23. The club held that the player received his full salary for January 2022 even though he only
joined on 14 January 2022.
c. Replica of the Claimant
24. In his replica, the Claimant reiterated his position.
25. In particular, the player denied having received the two letters submitted by the club. In
this regard, the player pointed out that those letters are undated.
26. The player held that he never accepted the alleged contractual suspension.
27. In this framework, the Claimant insisted that even if the suspension should be considered,
the club failed to remit the salaries for February, March, July and August 2022.
28. The player referred to the wording of annexe 7 of the RSTP according to which a contract
could be unilaterally terminated if no mutual agreement was reached. The player held that
since no such agreement was reached, the contract was still valid.
29. In this context, the player argued that he terminated the contract with just cause on 31
August 2022, due to outstanding remuneration of more than two months.
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REF. FPSD-7479
d. Duplica of the Respondent
30. In its duplica, the Respondent held that the player left Ukraine on 25 February 2022 and
therefore terminated the contract without just cause.
31. According to the Respondent, it requested the player to return to the club.
32. On account of the above, the club lodged a counterclaim against the player, requesting
payment of USD 500,000 as compensation for breach of contract, in accordance with art.
6.4 of the contract.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
33. First of all, the Dispute Resolution Chamber (hereinafter also referred to as 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 15 September 2022 and
submitted for decision on 24 May 2023. Taking into account the wording of art. 34 of the
March 2023 edition of the Procedural Rules Governing the Football Tribunal (hereinafter:
the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to
the matter at hand.
34. 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 (March 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 player and a club.
35. 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 (March 2023 edition), and
considering that the present claim was lodged on 15 September 2022, the July 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
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REF. FPSD-7479
36. In this framework, taking into account that the Respondent lodged a counterclaim against
the Claimant with its duplica dated 27 February 2023, the DRC referred to art. 21 par. 2 of
the Procedural Rules, which reads as follows:
“The respondent(s) may submit a counterclaim with their response to the claim. A
counterclaim shall have the same form as a claim and shall be submitted within the same
time limit as that for the response to the claim” (emphasis added).
37. In this context, the Chamber pointed out that the club failed to submit its counterclaim
with its reply dated 31 October 2022, but only did so in the final comments. Taking into
account the clear provision in the Procedural Rules, the DRC had no other choice that to
decide that the counterclaim is inadmissible.
b. Burden of proof
38. 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
39. 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
40. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute that the player had just
cause to terminate the contract.
41. In this context, the Chamber acknowledged that its task was to decide if the player had just
cause to terminate the contract or not, and to decide on the consequences thereof.
42. The members of the DRC noted that the Claimant held having terminated the contract with
just cause due to outstanding remuneration.
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REF. FPSD-7479
43. The Chamber also acknowledged that the Respondent argued that the safety of the players
had priority and that it informed the player about the suspension of the contract. However,
in its duplica, the Respondent argued differently and alleged that the player breached the
contract by leaving Ukraine on 25 February 2022.
44. Taking into account the special circumstances of the matter at hand, the Chamber pointed
out that undisputedly, the player left Ukraine on 25 February 2022 and did not return to
the club.
45. At the same time, the members of the DRC established that the club failed to take a clear
position to immediately call the player back, specifically when it became evident for the
club that the player had a different understanding of the status of the contract and that
the player expected to receive remuneration during his absence.
46. Moreover, and due to the extraordinary circumstances of this very specific case, the
Chamber also took into account the content of the regulations in force at the time of the
events (March 2022 edition of the regulations), which stated in Annexe 7, Art. 2 par. 1:
“Notwithstanding the provisions of these regulations and unless otherwise agreed between the
parties, a contract of an international dimension between a player or a coach and a club
affiliated to the UAF shall be considered automatically suspended until 30 June 2022.”
47. Taking into account the above, the DRC concluded that the contract between the Claimant
and the Respondent was indeed suspended as of March until 30 June 2022, in accordance
with the applicable regulations at the time of the events.
48. However, the Chamber highlighted that on analysis of the documentation on file it appears
that the player failed to show any willingness to find an amicable solution to the matter
and could have taken more efforts to find an amicable solution, which was in no doubt also
partly motivated by his wish not to return to Ukraine following the start of the war.
49. Taking all those special circumstances of the unique case at hand into account, the DRC
concluded that the player had no just cause to terminate the contract on 15 September
2022.
50. In line with the above, the DRC pointed out that the player’s request for compensation had
to be rejected.
ii. Consequences
51. The Chamber observed that the financial obligations deemed as outstanding in the present
case correspond to 3 monthly salaries for the months of February 2022, July 2022 and
August 2022.
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REF. FPSD-7479
52. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
claimed as outstanding under the contract, in total EUR 24,000, as detailed above.
53. In addition, 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 Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from the relevant due dates until the date of
effective payment.
iii. Compliance with monetary decisions
54. 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.
55. In this regard, the DRC 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.
56. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
57. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
58. The DRC 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.
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REF. FPSD-7479
d. Costs
59. 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.
60. 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.
61. 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-7479
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, LASSANA FAYE, is partially accepted.
2.
The Respondent, FC Rukh Lviv, must pay to the Claimant the following amount(s):
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EUR 8,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 2022
until the date of effective payment;
EUR 8,000 as outstanding remuneration plus 5% interest p.a. as from 1 August 2022
until the date of effective payment;
EUR 8,000 as outstanding remuneration plus 5% interest p.a. as from 1 September
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.
The counterclaim of the Respondent is inadmissible.
6.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The 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.
7.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-7479
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
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