Labour Disputes
Texto da decisão
REF FPSD-7448
Decision of the
Dispute Resolution Chamber
passed on 7 December 2022
regarding an employment-related dispute concerning the player Kouassi
Francis Koné
BY:
Jorge GUTIERREZ (Costa Rica)
CLAIMANT:
Kouassi Francis Koné, Togo
Represented by Mr. Slim Boulesnam
RESPONDENT:
Sarawak United FC, Malaysia
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I. Facts of the case
1.
On an unspecified date, the Togolese player, Kouassi Francis Koné (hereinafter: the Player
or the Claimant), and the Malaysian club, Sarawak United FC (hereinafter: the club or the
Respondent) concluded an employment contract (hereinafter: the contract) valid as from
1st January 2022 until 31 December 2022.
2.
In accordance with the contract the Respondent undertook to pay the Claimant a monthly
salary of USD 6,500 net.
3.
In accordance with the “schedule A” of the contract, the salary is:
“to be disbursed/paid to player in Malaysian Ringgit at agreed conversion rate of
USD1.00:RM4.20 (Malaysia’s Central Bank’s quoted rate on date player signed the contract).
The conversion rate of USD1.00:RM4.20 shall prevail for duration of the contract. Monthly
Salary including Allowances shall be paid to the player not later than the 7th of the following
month
INCREMENT OF USD500-00; BASED ON PERFORMANCE AND COACH’S RECOMMENDATION, WILL
BE AT SUFC’S DISCRETION AFTER THE COMPLETION OF THE FIRST ROUND OF LIGA SUPER 2022
MATCHES”.
4.
In accordance with “schedule B” of the contract, inter alia, the Player is entitled to:
-
5.
On 18 July 2022, the club informed all management officers, coaches, officials, and players
of the club the following:
-
-
6.
Housing: the Club shall make available a suitable housing, costs of which shall be
borne by the Club.
Flight ticket: from Abidjan, Ivory Coast to Kuala Lumpur-Kurching, Sarawak, for the
Player and an immediate family member.
The moment the Club would receive allocation from the Sarawak Premier Office in
August 2022, the Club will pay all arrears of salaries to all coaching staff, officers,
players and management officers immediately. The Club will also pay for all houses
rental, cars rental and so on.
Salary payments will involve deferred months and will be paid monthly salary
advances until October 2022 for all those involved.
On 25 July 2022, the Claimant put the Respondent in default and requested payment of
May 2022 and June 2022 salaries for USD 13,000; setting a 15-day deadline to remedy its
default.
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7.
On 7 August 2022, the Club informed the officers, coaching line, Club’s officials, and
players, inter alia, that salaries will be paid before 20 August 2022 for all players and
officials.
8.
On 9 August 2022, the Player sent a termination notice to the Club, as the default notice
allegedly remained uncontested.
9.
Following the termination of the contract, the player remained unemployed.
II. Proceedings before FIFA
10. On 13 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
11. According to the Claimant, he had just cause to terminate his contract under article 14bis
of the Regulations on the Status and Transfer of Players considering that three monthly
salaries (i.e. May, June and July 2022) were not paid.
12. The Claimant requested the following relief:
Outstanding salaries: USD 21,000
- May Salary 2022 USD 6,500 plus 5 % interest p.a. as from 1 June 2022.
- May bonus USD 500 plus 5 % interest p.a. as from 1 June 2022.
- June Salary 2022 USD 6,500 plus 5 % interest p.a. as from 1 July 2022.
- June bonus USD 500 plus 5 % interest p.a. as from 1 June 2022.
- July salary USD 6,500 plus 5 % interest p.a. as from 1 August 2022.
- July bonus USD 500 plus 5 % interest p.a. as from 1 June 2022.
Compensation
- USD 35,000 plus 5 % interest p.a. as from the date of termination.
- Flight Tickets to be determined by FIFA.
- EUR 7,760 as housing allowance.
b. Position of the Respondent
13. In spite of having invited to do so, the Respondent did not submit its position to the claim.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether he was competent to deal with the case at hand. In
this respect, he took note that the present matter was presented to FIFA on 13 September
2022 and submitted for decision on 7 December 2022. Taking into account the wording
of art. 34 of the October 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.
15. Subsequently, the Single Judge 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 (October 2022 edition), the Single Judge
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Togolese player and a Malaysian club.
16. Finally, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (October 2022 edition),
and considering that the present claim was lodged on 13 September 2022, the July 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
b. Burden of proof
17. The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he may
consider evidence not filed by the parties, including without limitation the evidence
generated by or within the TMS (Transfer Matching System).
c. Merits of the dispute
18. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments, and documentary evidence,
which he considered pertinent for the assessment of the matter at hand.
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i. Main legal discussion and considerations
19. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the main dispute is the justice of the early
termination of the contract by the Claimant, based on the alleged non-payment of certain
financial obligations by the Respondent as per the contract, in accordance with art. 14bis
of the Regulations.
20. In this context, the Single Judge acknowledged that his task was to determine, based on
the evidence presented by the parties, whether the claimed amounts had in fact
remained unpaid by the Respondent and, if so, whether the formal pre-requisites of art.
14bis of the Regulations had in fact been fulfilled. In doing so, the Single Judge underlined
that the Respondent failed to present its reply to the claim of the Claimant, and therefore
his decision would be made on the basis of the documentation on file, that is, the
argumentation and evidence filed by the Claimant, in line with article 14 par. 1 of the
Procedural Rules.
21. The Single Judge then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly
salaries on their due dates, the player will be deemed to have a just cause to terminate
the contract, provided that he has put the debtor club in default in writing and has
granted a deadline of at least 15 days for the debtor club to fully comply with its financial
obligations.
22. The Single Judge noted that the Claimant claims not having received his remuneration
corresponding to May, June and July 2022, amounting to USD 19,500. Furthermore, the
Single Judge noted that the Claimant has provided written evidence of having put the
Respondent in default on 25 July 2022, i.e., at least 15 days before unilaterally terminating
the contract on 9 August 2022.
23. The Single Judge also noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded
between the parties. Nonetheless, no evidence to his end was produced by the
Respondent, who failed therefore to demonstrate that it had complied with its financial
obligations.
24. This suffices to confirm, in the Single Judge’s view, that the Claimant had a just cause to
unilaterally terminate the employment relationship, based on art. 14bis of the
Regulations.
ii. Consequences
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25. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
26. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to three salaries
under the contract, amounting to USD 19,500. The Single Judge also observed the salary
is to be paid in in Malaysian Ringgit at the exchange rate 1 equal 4.20.
27. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Single Judge decided that the Respondent is liable to pay to the Claimant
the amounts which were outstanding under the contract at the moment of the
termination, i.e., MYR 81,900 (i.e., 3 times 27,300).
28. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Single Judge in this regard, the latter decided to award the Claimant
interest at the rate of 5% p.a. on the outstanding amounts as follows:
-
on the amount of MYR 27,300, 5% interest p.a as from 8 June 2022 until the date of
effective payment;
on the amount of MYR 27,300 5% Interest p.a as from 8 July 2022 until the date of
effective payment;
on the amount of MYR 27,300 5% interest p.a as from 8 August 2022 until the date of
effective payment.
29. With regards to the bonuses requested, the Single Judge concluded not to award said
amounts considering that the clause stipules a conditional payment for which the
Claimant has not provided evidence in order for the Single Judge to verify whether the
Claimant was entitled to said amount. As such, the Single Judge remarked that the
Claimant failed to discharge his burden of proof to demonstrate that the conditional
event triggering the bonus indeed had happened.
30. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the Player by the Club. In doing so, the Single Judge firstly
recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of
compensation shall be calculated, in particular and unless otherwise provided for in the
contract at the basis of the dispute, with due consideration for the law of the country
concerned, the specificity of sport and further objective criteria, including in particular,
the remuneration and other benefits due to the Player under the existing contract and/or
the new contract, the time remaining on the existing contract up to a maximum of five
years, and depending on whether the contractual breach falls within the protected
period.
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31. In application of the relevant provision, the Single Judge held that he first of all had to
clarify as to whether the pertinent employment contract contained a provision by means
of which the parties had beforehand agreed upon an amount of compensation payable
by the contractual parties in the event of breach of contract. In this regard, the Single
Judge established that no such compensation clause was included in the employment
contract at the basis of the matter at stake.
32. As a consequence, the Single Judge determined that the amount of compensation payable
by the Club to the Player had to be assessed in application of the other parameters set
out in art. 17 par. 1 of the Regulations. The Single Judge recalled that said provision
provides for a non-exhaustive enumeration of criteria to be taken into consideration
when calculating the amount of compensation payable.
33. Bearing in mind the foregoing as well as the claim of the Player, the Single Judge
proceeded with the calculation of the monies payable to the Player under the terms of
the contract from the date of its unilateral termination until its end date. Consequently,
the Single Judge concluded that the amount of MYR 136,500 (i.e. 5 times MYR 27,300)
serves as the basis for the determination of the amount of compensation for breach of
contract.
34. In continuation, the Single Judge verified as to whether the Player had signed an
employment contract with another club during the relevant period of time, by means of
which he would have been enabled to reduce his loss of income. According to the
constant practice of the Single Judge as well as art. 17 par. 1 lit. ii) of the Regulations, such
remuneration under a new employment contract shall be taken into account in the
calculation of the amount of compensation for breach of contract in connection with the
player’s general obligation to mitigate his damages.
35. In this respect, the Single Judge noted that the player remained unemployed since the
unilateral termination of the contract.
36. In addition thereto, the Single Judge took note of the Claimant’s request to receive one
flight ticket from Sarawak (Malaysia) to Abidjan (Ivory Coast) to be calculated by FIFA. In
this respect, the Single Judge decided to award one flight ticket in the amount of USD
1,500, corresponding to the Claimant’s return flight home following the early termination
of the Contract.
37. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the Club must pay the
amount of MYR 136,500 and USD 1,500 which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
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38. Lastly, taking into consideration the Player’s request as well as the constant practice of
the Single Judge in this regard, the latter decided to award the Player interest on said
compensation at the rate of 5% p.a. as from 13 September 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
39. Finally, taking into account the applicable Regulations, the Single Judge 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.
40. In this regard, the Single Judge 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.
41. Therefore, bearing in mind the above, the Single Judge 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.
42. 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.
43. The Single Judge 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.
d. Costs
44. The Single Judge 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 Single Judge decided that no procedural costs
were to be imposed on the parties.
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45. Likewise and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
46. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for
relief made by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Kouassi Francis Koné, is partially accepted.
2.
The Respondent, Sarawak United FC, has to pay to the Claimant, the following amounts:
- MYR 27,300 as outstanding remuneration plus 5% interest p.a. as from 8 June 2022
until the date of effective payment; 1
- MYR 27,300 as outstanding remuneration plus 5% interest p.a. as from 8 July 2022
until the date of effective payment;
- MYR 27,300 as outstanding remuneration plus 5% interest p.a. as from 8 August 2022
until the date of effective payment.
- MYR 136,500 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 13 September 2022 until the date of effective payment;
- USD 1,500 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 13 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.
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.
6.
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.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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