Labour Disputes
Texto da decisão
REF FPSD-5901
Decision of the
Dispute Resolution Chamber
passed on 6 September 2022
regarding an employment-related dispute concerning the player Datro David Fofana
BY:
Omar ONGARO (Italy), Chairperson
Stijn BOEYKENS (Belgium), member
Daan DE JONG (Netherlands), member
CLAIMANT:
Club Abidjan City FC, Côte d’Ivoire
RESPONDENT 1:
Molde FK, Norway
RESPONDENT 2:
Datro David Fofana, Côte d’Ivoire
REF FPSD-5901
I. Facts of the case
1. On 14 November 2017, the player David Datro Fofana, born on 22 December 2002 and Abidjan City
FC concluded a training contract (“contrat de formation”) valid until 13 November 2022 (i.e. 5 years).
2. The aforementioned contract included the following signatures:
3. On 31 July 2019, the player and Abidjan concluded a professional employment contract valid as from
31 July 2019 until 30 August 2022 (note: the player was 16 years and 7 months old at that moment).
4. According to the aforementioned contract, the player was entitled to a monthly salary of XAF 63,000.
5. The contract further stipulated the following:
« 2. Mr FOFANA DATRO DAVID, ne pourra répondre, au cours de la durée de validité du présent contrat, à
aucune sollicitation émanant d’un club, sans l’aval préalable d’ACFC représenté dans le présent contrat. Le
non-respect de cette clause entrainera une rupture immédiate du présent contrat entre les deux parties et
al mise en route de poursuite contre le joueur et le club à l’origine de la sollicitation »
6. The aforementioned contract included the following signatures:
7. On 26 November 2019, Abidjan concluded a loan agreement with the Ivorian club, Académie de
Football Amadou Diallo de Djékanou, valid for 6 months, i.e. until 31 May 2020.
8. On 30 October 2020, the mother of the player, Ms Valérie Datro Mahi, lodged a complaint before the
Players’ Status Committee of the Ivorian Football Federation in order to declare that the contract
signed with Abidjan had to be deemed as void since it contained a forged signature. The player was
17 years and 10 month old at that moment).
9. On 23 December 2020 (note: the player was 18 years old at that moment), the Players’ Status
Committee of the Fédération Ivoirienne de Football rendered the following decision:
« (…) Suivant requête formulée le 30 Octobre 2020, Dame DATRO Mahi Valérie se déclarant mère du joueur
DATRO David Fofana (…) demande à la commission compétente l’annulation de la prolongation du lien
contractuel (…)
REF FPSD-5901
(…) il y’a un doute sur l’authenticité de la supposée signature de Datro David Fofana sur l’acte portant
prolongation de contrat au regard des fait allégués :
(…)
Ordonne par conséquent l’annulation de la prolongation de contrat avec toutes les conséquences de droit
en découlant (..) »
(…)
Dit que les parties disposent d’un délai de quinze (15) jours à compter de la notification, pour exercer recours
contre la présente décision »
Free translation into English :
"(...) Following a request formulated on 30 October 2020, Ms DATRO Mahi Valérie declaring herself to be the
mother of the player DATRO David Fofana (...) asks the competent commission to cancel the extension of the
contractual link (...)
(...) there is a doubt on the authenticity of the supposed signature of Datro David Fofana on the act of
contract extension in view of the alleged facts:
(...)
Consequently, orders the cancellation of the contract extension with all the legal consequences arising from
it (...).
(…)
States that the parties have a period of fifteen (15) days from the date of notification to appeal against this
decision".
10. On 30 December 2020, Abidjan lodged an appeal against the aforementioned decision indicating, inter
alia, that it had no legal basis and that the Players’ Status Committee of the Fédération Ivoirienne de
Football never substantiated its competence.
11. On 9 January 2020, the Norwegian club, Molde FK, wrote a correspondence to Abidjan, with the
following contents:
“We would like to invite [the player] for a visit at our club from the 23rd of February 2020”
12. On 20 July 2020, the Belgian club, Wavolo BV, sent an offer for the player.
13. On 29 January 2021, the player concluded an employment contract with Molde, valid “as from 22
December 2020 until 31 December 2024”.
14. The player’s remuneration in the contract appears as follows:
15. Accordingly, and following the information contained in TMS, the player registered with Molde on 2
February 2021 (Transfer reference: 354909) following a transfer “out of contract” from Abidjan. The
decision of the Players’ Status Committee of the Fédération Ivoirienne de Football was uploaded as
evidence of the previous contractual relationship.
REF FPSD-5901
II. Proceedings before FIFA
16. On 16 March 2021, Abidjan lodged a claim before FIFA (FPSD-2055) against Molde, the player as well
as against the agent Emefie Aneke Atta, and requested the payment of the following:
- EUR 386,994 as training compensation;
- EUR 1,500,000 as compensation for training compensation;
- EUR 1,060,000 as compensation for loss of income.
17. The claim was subsequently closed by the FIFA administration following an invitation to, inter alia,
properly lodge the claim for training compensation in the Transfer Matching System (TMS).
18. Moreover, on 12 July 2021 and following a claim for training compensation lodged by Abidjan in
relation to the player, FIFA issued a binding proposal (Ref. nr. TMS 8442) with the following contents:
“The Respondent, Molde FK, shall pay the Claimant, Abidjan City FC :
EUR 70,520.54 plus 5% interest per annum as from 5 March 2021 until the date of effective payment.
19. On 29 April 2022, Abidjan lodged a claim before FIFA for breach of contract without just cause against
the player and Molde, and requested the payment of compensation in the amount of EUR 5,165,000,
as well as the payment of training compensation in the amount of EUR 286,100.
20. In relation to the payment of training compensation, the club argued that, “if the contract would have
not been breached”, the club would have further been entitled to the following amounts, in addition to
the already due amounts:
Already due amounts:
- season 2017-2018 : 15 years = 10.000 EUR,
- 2018-2019 season: 16 years old = 90.000 EUR,
- 2019-2020 season (from 1/11/2019 to 26/11/19): 17 years: 61.000 EUR.
Amounts that would have been due if the player did not terminate the contract:
- Season 2020-2021: 18 years = 90.000 EUR,
- Season 2021-2022: 19 years = 90.000 EUR.
21. The Claimant considered that the decision of FIFA concerning training compensation shall be
reassessed since the matter is complex and therefore did not comply with the requirements of art. 13
of the Procedural Rules.
22. According to the Claimant, the player was bound by the contract signed on 31 July 2019.
23. The player and Molde FK jointly submitted their reply to the claim.
24. The respondents first argued that the claim of Abidjan shall be deemed as inadmissible since it
withdrew its initial claim, which had the same object and cause.
25. Subsidiarily and as to the facts, the Respondents considered that, in any case, when the player
signed a contract with Molde, he was not under a contract with Abidjan.
REF FPSD-5901
26. “Still more subsidiarily”, the Respondents considered that the player had a just cause to terminate
the contract with Abidjan.
27. The Respondents requested the payment of the procedural costs in an amount of no less than CHF
5,000 “due to the clear frivolity” of the claim of Abidjan.
28. The Respondents considered that the “training contract” nor the “professional contract” shall be
deemed as valid, insofar they were forged.
29. The player explained that the only document that his mother signed was a parental authorisation
allowing him to travel with the club and that, for his part, he only signed yearly administrative
licenses which were only valid for a specific season.
30. The player argued that Abidjan only paid him some costs for transportation, match bonuses and a
pair football boots. The player denied having received any salary.
31. The Respondents therefore insisted that the player was never bound by any employment contract
while he was registered with Abidjan.
32. The player also denied having signed any agreement with Académie de Football Amadou Diallo.
33. In its duplica, the Claimant insisted in its initial arguments and requested to be paid as follows:
- EUR 5,165,000 as compensation for breach of contract without just cause;
- EUR 286,100 as training compensation.
34. The Claimant insisted in the competence of FIFA on the basis of art. 22 a) of the Regulations.
35. According to the Claimant, the Player's breach of his professional contract and his signing of a contract
with Molde FK, in complete disregard of his contract with Abidjan, caused the latter significant damage,
depriving it of the possibility of making a profit on its investment in the player by concluding a
permanent transfer contract with one of the many clubs that had made an offer for the player's
transfer.
36. The Claimant further insisted that the signatures in the contract are valid and presented the following
comparison, including a signature included in a contract with a players’ agent:
37. The Claimant considered that the Respondents failed to meet their burden of proof as to the alleged
forgery.
REF FPSD-5901
38. The Claimant further argued that the FIF Players' Status Committee therefore did not have the
jurisdictional power to make its decision, insofar the FIF was under a normalization committee on 24
December 2020 (i.e. one day after the decision).
39. The Claimant underlined that said decision was rendered only one day after he reached the age of 18,
and therefore considered that the player should have expressed his will to continue with said
proceedings.
40. The Claimant considered that said decision was rendered ultra petita, insofar the parties did not made
any request.
41. The Claimant argued that it lodged an appeal against said decision, but explained that it was not yet
examined, despite having been pending for a year and a half.
42. In their replica, the Respondents insisted in their previous position.
43. The Respondents underlined that the player was free to conclude his contract with Molde insofar the
training contract and the professional contract are forged.
44. The Respondents underlined that the above issue has already been the subject of a proceeding before
the Players’ Status Committee of the Fédération Ivoirienne de Football which, in respect of the
Professional Contract, concluded that there are “real doubts as regards the authenticity of the alleged
signature of [the Player]…” and, as such, declared the Professional Contract null and void.
45. The Respondents considered that the Professional Contract was already declared null and void by a
competent body for, most likely, having been forged.
46. The Respondents considered that the signatures in the contract are different, as “contested signatures
have two round strokes at the bottom, while the Player’s uncontested signature only has one”, as
follows:
47. The Respondents wished to express their firm conviction that, on a balance of probabilities and
considering the behaviour of the parties and the circumstances of the matter at stake, it is clearly
more likely than not that neither the Player nor his mother ever signed a contract with the Claimant.
48. In view of the above, Molde expressed that, given the decision of the Players’ Status Committee of the
Fédération Ivoirienne de Football, it could rely in good faith in such decision to assume that the Player
was free.
49. The Respondents considered that said decision should be treated as a question of fact in this matter
as the FIFA DRC is not competent to assess the legality or correctness of such decision.
REF FPSD-5901
III. Considerations of the Dispute Resolution Chamber
a.
Competence and applicable legal framework
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber) analysed
whether it was competent to deal with the case at hand. In this respect, it took note that the present
matter was presented to FIFA on 29 April 2022 and submitted for decision on 6 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.
2.
Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. a) of the
Regulations on the Status and Transfer of Players (June 2022 edition), it is competent to deal with
the matter at stake, which concerns a dispute in relation to the maintenance of the contractual
stability where there has been an ITC request and a claim from an interested party in relation to said
ITC request.
3.
Subsequently, the Chamber analysed which regulations should be applicable as to the substance of
the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players, and considering that the present claim was lodged
on 29 April 2022, the March 2022 edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
b.
Burden of proof
4.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of the
Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall
carry the respective burden of proof. Likewise, the Chamber stressed the wording of art. 13 par. 4
of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties,
including without limitation the evidence generated by or within the Transfer Matching System
(TMS).
c.
Admissibility
5.
In limine litis, the Chamber acknowledged that the matter at stake presents certain procedural
elements that need to be assessed,
6.
In particular, the Chamber noted that the Claimant fundamentally lodged a claim for breach of
contract without just cause on the basis of art. 22 par. 1 lit a) of the Regulations, while also requested
the payment of training compensation.
REF FPSD-5901
7.
In relation to said request for training compensation, the Chamber referred to Art. 27 of the
Procedural Rules, according to which, a party must submit a claim for training compensation or the
solidarity mechanism and its additional documents in TMS. The Chamber therefore observed that
the Claimant did not follow the mandatory procedural channels and, as result, his request in relation
to training compensation is inadmissible. The Chamber further underlined that the mechanism of
training compensation as well as the payment of compensation for breach of a labour contract
without just cause are distinct legal issues that also serve different purposes and, as a result, can
and shall be individually in accordance with their respective procedural channels.
8.
In addition, the Chamber also observed that, on 16 March 2021, the Claimant already lodged a claim
before FIFA, which was not entertained due to the non-compliance of certain formal requirements.
9.
The Chamber referred to art. 18 par. 2 of the Procedural Rules which, for situations in which a
claimant fails to lodge a claim containing all the formal requirements, “the FIFA general secretariat will
assess whether these requirements are met. If the claim is incomplete, the FIFA general secretariat will
inform the claimant and request rectification. If the claim is not rectified within the time limit given, it is
deemed to be withdrawn and will need to be resubmitted.” (underline added)
10. Therefore, since following art. 18 par 2 of the Procedural Rules, the consequence of not meeting
certain formal aspects is only a requirement to resubmit a claim, the Chamber thus clarified that,
given that said proceedings were never closed or subject to a decision, said claim was never
withdrawn and the Claimant was only mandated to resubmit his claim, as he ultimately did so.
11. Therefore, the Chamber established that the present matter is admissible, exclusively in relation to
the elements pertaining art. 22 par. 1 lit a) of the Regulations, i.e. in relation in relation to the
maintenance of the contractual stability.
d.
Merits of the dispute
12. Its competence and the applicable regulations having been established, the Chamber entered into
the merits of the dispute. In this respect, the Chamber started by acknowledging all the abovementioned facts as well as the arguments and the documentation on file. However, the Chamber
emphasised that in the following considerations it will refer only to the facts, arguments and
documentary evidence, which it considered pertinent for the assessment of the matter at hand.
i.
Main legal discussion and considerations
13. The Chamber first took note that, according to the Claimant, Abidjan City FC, on 31 July 2019, the
player and Abidjan concluded a professional employment contract valid as from the date of
signature until 30 August 2022. The Chamber was aware of the fact that said contract was signed by
the player’s mother, given that, at that moment, the player was underage.
14. Thereafter, the Chamber observed that Abidjan City FC lodged a claim before FIFA against the player
and his new club, as it considered that the player breached said contract without just cause.
REF FPSD-5901
15. On the other hand, the Chamber noted that, on 23 December 2020, the Players’ Status Committee
of the Fédération Ivoirienne de Football rendered the following decision:
« (…) Suivant requête formulée le 30 Octobre 2020, Dame DATRO Mahi Valérie se déclarant mère du
joueur DATRO David Fofana (…) demande à la commission compétente l’annulation de la prolongation du
lien contractuel (…)
(…) il y’a un doute sur l’authenticité de la supposée signature de Datro David Fofana sur l’acte portant
prolongation de contrat au regard des fait allégués :
(…)
Ordonne par conséquent l’annulation de la prolongation de contrat avec toutes les conséquences de droit
en découlant (..) »
(…)
Dit que les parties disposent d’un délai de quinze (15) jours à compter de la notification, pour exercer
recours contre la présente décision »
Free translation into English :
"(...) Following a request formulated on 30 October 2020, Ms DATRO Mahi Valérie declaring herself to be
the mother of the player DATRO David Fofana (...) asks the competent commission to cancel the extension
of the contractual link (...)
(...) there is a doubt on the authenticity of the supposed signature of Datro David Fofana on the act of
contract extension in view of the alleged facts:
(...)
Consequently, orders the cancellation of the contract extension with all the legal consequences arising
from it (...).
States that the parties have a period of fifteen (15) days from the date of notification to appeal against
this decision".
16. The Chamber also noted that Abidjan apparently lodged an appeal against said decision, but
observed that no further information was provided about the status of the appeal proceedings. The
Chamber therefore underlined that it could only decide on the basis of the information on file, as
collected during the course of the investigation.
17. Under any circumstance, the Chamber observed that the decision of the Players’ Status Committee
of the Fédération Ivoirienne de Football fundamentally established that the contract of 31 July 2019,
which is at the basis of the present dispute, had to be deemed as void. The Players’ Status Committee
further pointed-out that the intervention of the Players’ Status Committee of the Fédération
Ivoirienne de Football appears to be a logical consequence to the fact that both the Claimant and
the player have the same nationality.
18. Given the above, the Chamber noted that it was not in a position to bypass the decision that was
already rendered by the Players’ Status Committee of the Fédération Ivoirienne de Football and that,
therefore, it was bound by its findings, which fundamentally established that the contract at the
basis of the present dispute became void. Therefore, the player was free to subsequently conclude
a contract with his new club, Molde FK.
REF FPSD-5901
19. Consequently, and without having to enter into any other consideration, the Chamber established
that the claim of Abidjan City FC had to be rejected.
e.
Costs
20. 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.
21. Furthermore, the Chamber recalled the contents of art. 25 par. 8 of the Procedural Rules, and
decided that no procedural compensation shall be awarded in these proceedings.
22. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
REF FPSD-5901
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Abidjan City FC, is rejected insofar it is admissible.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-5901
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
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