Labour Disputes
Texto da decisão
REF. FPSD-12341
Decision of the
Dispute Resolution Chamber
passed on 7 March 2024
regarding an employment-related dispute concerning
the player Lassana Faye
COMPOSITION:
Lívia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman
Roy VERMEER (The Netherlands), member
Mario FLORES CHEMOR (Mexico), member
CLAIMANT:
Lassana Faye, the Netherlands
Represented by Almeida, Dias & Associados
RESPONDENT:
Monopoli 1966 S.R.L.
Represented by Lucia Bianco
pg. 2
REF. FPSD-12341
I. Facts of the case
1.
On 15 September 2022, the Dutch player, Lassana Faye (hereinafter: the Claimant or the
player) and the Italian club, Monopoli 1966 S.R.L. (hereinafter: the Respondent or the club)
concluded an employment contract valid as from the date of signature until 30 June 2023
(hereinafter: the contract).
2.
According to the contract, the Respondent undertook to pay the Claimant a total gross
remuneration of EUR 24,000 plus a travel allowance of EUR 10,000 and a conditional bonus
of EUR 11,000.
3.
Clause 4 of the contract reads as follows:
“Art. 4 - By signing this contract, which renews and replaces any previous agreement
in the ways and terms sanctioned by the collective agreement, the parties assume the
obligation to observe the rules of the C.O.N.I., and of the F.I.G.C. and the Lega Pro.
They also undertake to accept the full and definitive effectiveness of all the general
provisions and all the particular decisions adopted by the FIGC, by its bodies and
delegated subjects, as well as by the Sports Justice Bodies of all levels, in matters
pertaining to sporting activity and in the related disputes of a technical, disciplinary
and economic nature. In particular, the parties acknowledge the validity, effectiveness
and binding nature of the arbitration clause contained in the Collective Agreement
between Lega Pro and A.I.C.. Any violation or action in any case tending to avoid the
arbitration clause involves the application, in addition to any other legal consequence,
of the disciplinary sanctions provisioned in the Statute.”
4.
On the same date, 15 September 2023, the player and the club signed a “private
agreement” which indicated the following:
“in addition to the gross amount stated in the contract no. 0004379402/22 for the
2022/2023 season to [the player] the [club] will pay him:
- a sum of € 5,000.00 (FIVE THOUSAND) net upon winning the Serie C Championship
in the 2022/2023 Sporting Season and consequent participation in the Serie B
Championship in the 2023/2024 Sporting Season;
an amount of € 5,000.00 (FIVE THOUSAND) net on achieving a position in the final
classification between the second and fourth position in the Serie C Championship in
the 2022/2023 Football Season;
pg. 3
REF. FPSD-12341
- an amount of € 3,000.00 (three thousand) net upon reaching the 20th league
appearance of at least 45 minutes;
- [The club] may renew the existing contract for the 2023/2024 season on an exclusive
basis between 30/01/2023, with a fixed base amount of € 50,000.00 (fifty
thousand/00) net;
- [The club] will pay a home refund of € 3,000.00 (three thousand/00) for the
2022/2023 season.”
5.
On 29 September 2022, the club sent to the player the following letter:
“In relation to your possible membership in favor of the undersigned company, I
inform you that the same cannot be completed for reasons not dependent on our will.
After entering the TMS procedure, we asked you for the documentation relating to
your STATUS position, unlike when communicated to us in the negotiation it turned
out that you were not released but rather had requested a consensual termination,
which was never approved by the CLUB FC Rukh Lviv.
Therefore, finding obstacles to his membership and the immediate availability of his
sports performances, primarily due to his previous position as a registered member
(despite his declaration of free and non-registered status) in favor of another nonltalian club and the subsequent FIFA dispute that arose between his person and the
old club of belonging FC Rukh Leopoli opened only on 09/14/2022 which in fact
significantly lengthened the completion times of his membership.
To date, this situation makes your person not immediately available in favor of the
club and therefore unusable until the approval of FIFA can be obtained with times and
methods that cannot be foreseen and not useful for the purposes of the [club].
Therefore, the undersigned company hereby formally renounces any continuation of
the membership (not yet completed in the relevant league, due to lack of enforceability
visa), making your person free to find another team and the same [club], cannot
assure you the training sessions and any obligation, not being registered for the
same.”
6.
On the same date, the player sent a letter to the club acknowledging the receipt of the
termination letter and indicating that this was without just cause.
7.
Subsequently, the player signed an employment contract with the Canadian club, York
United Football Club, valid as from 1 January 2023 until 31 December 2023, including a total
salary of CAD 35,000.
pg. 4
REF. FPSD-12341
8.
On 22 June 2023, the player signed an employment contract with the Dutch club, Telstar
1963, valid as from 1 July 2023 until 30 June 2024, with a monthly gross salary of EUR 3,000.
Proceeding in front the Italian Board of Arbitration (hereinafter: the Italian
Arbitration Committee)
9.
On 14 December 2022, the player filed a claim against the club in front of the Italian
Arbitration Committee, indicating that the club terminated the contract without just cause.
The Claimant requested the following relief:
“1. Establish that the [club] has unilaterally terminated the contract without cause;
2. Order the [club] to pay to the [player] the sum due of €24,000.00 (twenty-four
thousand euros), corresponding to the total amount of wages in arrears, as provided
for in Clause 2 of the Contract.
3. Order the [club] to pay the [player] travel and subsistence allowances in the total
amount of €13,000.00 (thirteen thousand euros);
4. Order the [club] to pay to the [player] the performance premium in the total
amount of €19,000.00 (nineteen thousand euros);
5. Order the [club] to pay it default interest at the rate of 5% p.a. on the total amount
referred to in the preceding paragraphs from the dates on which those amounts
became due, or from the date on which the defendant made it impossible for them to
become due, until the date of their actual payment.”
10. On 13 January 2023, the Respondent filed its position as to the claim of the player and
requested the following relief:
“As a preliminary matter, declare inadmissible and/or improper and in any event null
and void the appeal brought by [the player] inasmuch as it is contrary to Article 1 of
the FIGC/AIC/LEGA PRO Agreement, given that the present appeal does not have as its
object a dispute that regulates the treatment of an economic and/or regulatory
relationship between an AIC professional footballer and a club taking part in a
national championship organised by the Lega ltaliana Calcio Professionistico, and in
relation to the failure to elect domicile in the national territory;
In the alternative: reject the claims made by [the player] as unfounded in fact and in
law for the reasons set out in this deed and, accordingly, establish and declare that
the club Monopoli 1966 is not responsible for the infringement referred to in Article
15(2) of the FIGO-AIC - LEGA PRO Collective Agreement.
pg. 5
REF. FPSD-12341
In the alternative: in the unlikely event that the club Monopoli 1966 is found guilty and
sentenced pursuant to Article 16(2) of the Collective Agreement FIGG - AIC - LEGA PRO,
reduce the counterparty's claims to the extent deemed fair by the court”
11. On 5 April 2023, the Italian Arbitration Committee rendered its decision under case n°
34.2022:
“In light of the foregoing, the Arbitration Committee unanimously decides as follows:
- rejects the preliminary plea of lack of jurisdiction raised by the Company;
- dismisses the action brought by [the player] on the grounds set out above;
- compensate the parties for the costs of the proceedings;
- Notwithstanding the solidarity between the Parties, the Parties shall bear the costs
for the functioning of the Arbitration Board, which it settles at €400.00 plus expenses
and accessories for the President and €300.00 plus expenses and accessories for each
Arbitrator, in addition to €300.00 for administrative fees.”
12. In particular, the Italian Arbitration Committee stated:
“First of all, the [Italian Arbitration Committee] rejects the plea of lack of jurisdiction
raised by the Respondent, given that the arbitration clause is contained in the contract
signed between the Parties on 15 September 2022; in fact, a simple reading of Articles
3 and 4 of the contract allows us to state - without fear of contradiction - that the
Parties have expressly accepted all the regulatory provisions including the arbitration
clause that devolves all disputes to the Board of Arbitration.
Consequently, the jurisdiction of the [Italian Arbitration Committee] to judge this
dispute is deemed to be established.
On the merits, the Board considers that the appeal cannot be allowed.
In fact, the defendant (p. 6, lines 6/8 memorandum 13.1.2023) deduces that "on
28.9.2022, it sent a request to the competent Licensing Office for the forced closure of
the TMS membership procedure no. 588141 for the reasons already stated"; and it
filed (doc. 5) the "Transfer contract details report FIFA/TMS of 23.9.2022", from which
it appears that on 26.9.2022 the defendant had uploaded the "cancellation request"
and on 27.6.2022 the "request for forced closure" and that FIGC had filed "identical
request for forced closure" on 28.9.2022.
pg. 6
REF. FPSD-12341
These circumstances, which have been documented, have not been disputed by the
applicant.
It follows that the contract was not approved by the Lega Pro; that, therefore, the
concrete case falls within the abstract case governed by Article 3.4 of the CA and that
the player could, if at all, take action - if the non-approval derives from "a fact not
attributable to him" – to have his right to fair compensation ascertained.
On the other hand, it is common ground that "fair compensation" is, by definition,
ontologically different from damages for breach of contract, so that the College,
pursuant to Article 112 of the Code of Civil Procedure, cannot decide on claims not
brought.
There are, however, justified reasons, given the factual circumstances and the
subjective situation of the appellant, to award legal costs between the parties.”
Collective agreement 2012-2015
13. The Collective agreement 2012-2015 signed between the Italian Football Federation, Lega
Italiano Calcio Professionistico and the “Associazione Italiana Calciatori” reads, inter alia, as
follows:
Clause 3.4
“3.4 The right to fair compensation is recognised for the Player whose contract does not
obtain the approval of the F.I.G.C. for reasons not attributable to him. The amount of the
indemnity is determined by the Board of Arbitration, at the request of the Player, by
comparing it - in the event of non-admission to the relevant championship - with the annual
period of the football season in question and taking into account any other contract entered
into by the Player with a professional club or an economic agreement with a club participating
in the Amateur National Championship, as well as the amount of the same. The indemnity
may also be determined by agreement between the parties, in writing under penalty of nullity,
but only after the Contract has not been approved”
Clause 16.1
“The player has the right to obtain, through an appeal to the Arbitration Board, compensation
for damages and/or termination of the contract when the club has committed breaches of its
contractual obligations towards the player.”
pg. 7
REF. FPSD-12341
II. Proceedings before FIFA
14. On 20 October 2023, 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
15. In his claim, the player filed a claim for breach of contract. He argued that the contract was
terminated by the club without just cause, considering that the termination of the contract
should be a last resource, and therefore the fact that a registration would take longer
cannot be deemed as a just cause. Therefore, he considered that he is entitled to
compensation.
16. In view of the foregoing, he requested the following relief:
“A. Establish that [the club] has unilaterally terminated the Contract without just
cause;
B. Order [the club] to pay to [the player] a financial compensation as a consequence
of the its unilateral termination of the Contract without just cause during the Protected
Period in an amount corresponding to the entire, fixed and variable, contractual
remuneration established under the Contract, in the amount of EUR 24.000,00
(twenty-four thousand Euros);
C. Order [the club] to pay to [the player] the travel and accommodation allowances
in the total amount of EUR 13.000,00 (thirteen thousand Euros);
D. Order [the club] to pay to [the player] default interest at the rate of 5% p.a over
the above-mentioned amounts, as from the date of the termination of the Contract
without just cause, i.e. 29.09.2022, until the date of their effective payment;
E. Sanction [the club] in accordance with Art. 17, Par. 4 of the RSTP; and
F. Order [the club] to pay the full FIFA procedural costs, if any.”
b. Position of the Respondent
17. In its reply, the Respondent requested FIFA to declare inadmissible the claim of the
Claimant or in any case to reject the player’s claim.
Preliminary point: The inadmissibility of the Claim
pg. 8
REF. FPSD-12341
18. The Respondent stated that the claim shall be inadmissible as the player initiated a claim
on 29 December 2022, with the same content and request as the current claim, in from of
the Italian Arbitration Committee and that said Committee rendered a decision confirming
its jurisdiction and competence, and rejecting the player’s claim. Moreover, the Respondent
highlighted that the player has never challenged and appealed the decision of the Italian
Arbitration Committee.
19. The Respondent concluded that: “i) the jurisdiction and competence of this case has been
expressly referred by the Parties to an independent arbitration board established at national
level within the framework of the association and collective bargaining agreement, on the basis
of a specific arbitration clause included in the Contract and in the relevant a collective
bargaining agreement applicable; and ii) the same case currently pending before the FIFA DRC
has already been decided by the Italian arbitration board with a decision that the Player has
never challenged and appealed.”
Ineffectiveness of the contract due to the player’s status and no-existence of a
termination
20. The club indicated that the contract did not enter in force and produced any effects, and
this was due to the sole responsibility of the player, since he was still employed and
registered with his former club and that “the Respondent was objectively unable, from a
technical and juridical perspective, to register the Player, submitting and filing the relevant
Contract and obtain the relevant enforceable visa”.
21. Moreover, the club referred to the Italian mandatory provisions which stated that “an
employment contract between a club and a professional football player may be valid and
effective only if the contract is submitted and filed to the relevant federation and approved by
this latter with the relevant visa. Without these mandatory legal requirements the contract is
without any effects”. In view of the foregoing, the Respondent concluded that the claim shall
be rejected.
In the alternative: the just cause of termination
22. In case the Football Tribunal understands that the contract was terminated, then this was
with just cause, as the player wrongly confirmed that he was a free agent, and the club only
discovered it once it tried to register him. Therefore, this termination would have been due
to the player’s status and his serious contractual misconduct.
In the alternative: the compensation required by the player
23. The player should not be entitled to compensation, as he signed a new contract with a
Canadian club with most favourable conditions, and that the request of accommodation
and travel allowance is to compensate the costs borne of this nature and, in this case, it
pg. 9
REF. FPSD-12341
was evident that no costs have never been triggered. Consequently, the player’s request
shall be rejected or significantly reduced.
24. In view of the foregoing, the club requested the following relief:
1. As a preliminary point: declare the inadmissibility of the claim or, in any case,
reject the claim.
2. Principally: reject the claim and all the player’s requests, because totally
ungrounded.
3. In alternative: reject all the economic player’s requests, because totally
ungrounded or reduce the relative amounts due to the reasons proposed as
indicated in its response.
c. Rejoinder of the Claimant
25. In his rejoinder, as to the admissibility, the Claimant stressed that:
-
Accepting that the claim is inadmissible would constitute a denial of justice since the
Respondent’s termination would be limited to a fair compensation thus affording a
reduced degree of protection to that afforded by FIFA; the player would not be
entitled to any damages for breach of contract but only to a “fair compensation”.
-
The decision of the Italian Arbitral Committee does not enjoy res judicata effect since
it did not take a decision on the merits. According to the Claimant, the Italian Arbitral
Committee refused to adjudicate the matter because it considered that the
Claimant’s requests were inadmissible due to the fact that he was not registered he
did not have the right to obtain a compensation for damages and/or termination of
the contract but only a “fair compensation”. In particular, he referred to the Court of
Arbitration for Sport’s decision CAS 2021/A/7915.
-
Finally, clause 4 of the contract, is not exclusive in nature, as there was not an explicit
and exclusive arbitration clause.
26. As to the substance, regarding the termination of his former employment relationship at
the moment of signature of the contract, either by just cause or not, the player was a free
agent, and the fact that the Respondent could not register the player was not the player’s
responsibility. Therefore, the club terminated the contract without just cause.
27. In view of the foregoing, the Claimant concluded as follows:
“a) It is competent to hear the present dispute;
pg. 10
REF. FPSD-12341
b) The Respondent terminated the contract without just cause; and therefore
c) The Claimant is entitled to compensation for breach of contract.”
28. The player’s request for relief remained unchanged.
d. Final comments of the Respondent
29. In its final comments, the Respondent stated as to the admissibility the following:
“[…] it is evident that the Claimant was entitled to rely on the Arbitration Proceeding
set out by art. 4 of the Contract and art. 25 of the Collective Agreement - as he has
actually done, moreover with the same legal representative who is assisting him in this
case - since according to the clear content of this art. 25 the Arbitration Board was
competent with reference to "The resolution of all disputes concerning the
implementation of the contract or, in any case. the relationship between the Club and
the Players" (point no. 25, Annex 6). And it is pretty evident that a claim concerning
the (alleged) unfair termination of the Contract falls within the category of matters
referred to the arbitration board based on the clause concerned, as confirmed by the
same Claimant when decided to submit the case to the Arbitration Board;
• with reference to the exception ii), the counterpart's thesis according to which the
Arbitration Board "did not take a decision on the merits", refusing the matter because
"inadmissible", is contradicted by the content of the decision concerned, where is clear
that the arbitration board, after confirming Its jurisdiction and competence, rejected
the case "on the merits.
• finally, with reference to the exception iii), the counterpart's thesis according to which
the arbitration clause set out by art. 4 of the Contract (and by art. 25 of the Collective
Agreement) "is not exclusive in nature", is contradicted by the content of these
clauses:"
30. In view of the foregoing, the player’s claim is inadmissible, otherwise this would be
contradictory to the principle ne bis in idem. As to the merits its position remained
unchanged as well as the request for relief.
pg. 11
REF. FPSD-12341
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
31. 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 20 October 2023 and submitted
for decision on 7 March 2024. 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.
32. 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 par. 1 lit. b)
of the Regulations on the Status and Transfer of Players (February 2024 edition), the
Dispute Resolution Chamber is in principle competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between
a Dutch player and an Italian club.
33. In continuation, the Chamber observed that the present claim pertains to compensation
for breach of contract in connection with the early termination of the employment
relationship. The Chamber also observed that the club objected the admissibility of the
claim on the grounds that the Italian Arbitration Committee rendered a decision on the
same grounds, and therefore, the present case was res judicata.
34. The Chamber noted that the player, before submitting this matter to FIFA, had already filed
a claim in front of the Italian Arbitration Committee and said Committee rendered a
decision on the matter on 5 April 2023.
35. In view of the above, the Chamber recalled that, on the basis of the principle of res judicata,
a decision-making body is not in a position to deal with the substance of a case in the event
that another – competent – deciding body has already dealt with the same matter by
passing a final and binding decision.
36. The cited principle of res judicata is applicable if cumulatively and necessarily the parties to
the disputes and the object of the matter in dispute are identical. In this respect, the
Chamber recalled that the criterion of the identity of the parties is given if the parties to
the disputes are the same. Having said this, the Chamber noted that both the Claimant and
the Respondent were the parties in the proceedings leading to the decision previously
rendered as well as in the dispute at stake. As a consequence, considering that both
pg. 12
REF. FPSD-12341
disputes were the same, the Chamber came to the conclusion that the condition of the
identity of parties is fulfilled.
37. The Chamber then turned its attention to the criterion of the object of the matter in
dispute. In this respect, when comparing the claim in front of the Italian bodies to the claim
at hand, it is true that both discuss inter alia the player’s entitlement to the amounts due
to a breach of contract. Having said that, the Chamber noted that both legal actions were
based on the club’s alleged violation of the same contract and (partially) contained the very
same request for relief. Thus, the Chamber underscored that the condition of identity of
the object of the matter in dispute is also fulfilled.
38. In conclusion, the Chamber determined that both legal actions not only concern identical
parties to the dispute but also identical objects and (partial) requests for relief. Therefore,
as Italian Arbitral Committee has already dealt with the exact same matter, passing a
decision which appears to be final as none of the parties appealed such decision, the
present case is affected by res judicata and FIFA is not in a position to deal again with the
substance of the dispute.
39. For sake of clarity, the Chamber also wished to outline that the Italian Arbitration
Committee declared itself competent to deal with that case and rejected the case on the
merits, and not because it was inadmissible, as indicated below:
“Consequently, the jurisdiction of the C.A. to judge this dispute is deemed to be
established.
On the merits, the Board considers that the appeal cannot be allowed.
[…]
It follows that the contract was not approved by the Lega Pro; that, therefore, the
concrete case falls within the abstract case governed by Article 3.4 of the CA and that
the player could, if at all, take action - if the non-approval derives from "a fact not
attributable to him" – to have his right to fair compensation ascertained.
On the other hand, it is common ground that "fair compensation" is, by definition,
ontologically different from damages for breach of contract, so that the College,
pursuant to Article 112 of the Code of Civil Procedure, cannot decide on claims not
brought.” (emphasis added).
40. Consequently, the denial of justice raised by the Claimant cannot be followed, the player
has fully exercised his right to submit his position and request for relief.
pg. 13
REF. FPSD-12341
41. Therefore, the Chamber decided that the claim at hand is inadmissible.
42. Lastly, 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 player.
pg. 14
REF. FPSD-12341
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Lassana Faye, is inadmissible.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 15
REF. FPSD-12341
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
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
pg. 16