Labour Disputes
Texto da decisão
REF FPSD-6027
Decision of the
Dispute Resolution Chamber
passed on 31 August 2022
regarding an employment-related dispute concerning the player Salia Cherif
Konate
BY:
Dana MOHAMED AL-NOAIMI (Qatar)
CLAIMANT:
Salia Cherif Konate, Côte D’Ivoire
RESPONDENT:
FC Vorskla Poltava, Ukraine
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REF FPSD-6027
I. Facts of the case
1.
On 23 February 2021, the Ivorian player, Salia Cherif Konate (hereinafter: the player or the
Claimant) and the Ukrainian club, FC Vorskla Poltava (hereinafter: the club or the
Respondent) concluded an employment contract valid as from 24 February 2022 until 30
June 2024 (hereinafter: the contract).
2.
Under Annexe 1 of the contract, the player was entitled to the following remuneration:
a. USD 625 as monthly salary from 24 February 2021 until 30 June 2021;
b. USD 870 as monthly salary from 1 July 2021 until 30 June 2022;
c. USD 1,245 as monthly salary from 1 July 2022 until 30 June 2024.
3.
On 14 December 2021, the player wrote to the club and stated as follows:
“We have signed a contract on 23 February 2021.
you have told me this week that my contract has been cancelled. I have also been removed
from the apartment in which I was staying and now I have to stay in a hotel.
My contract is still valid and I ask you to confirm in the next three days that I am still a player
of the club and that my contract is not cancelled. I also asked to immediately give my
apartment back so I do not have to stay in a hotel.
If you cancel my contract you have to sign a termination agreement with me and you have to
pay me compensation”
4.
On 20 and 29 December 2021, the player reiterated his position to the club. By his latest
letter of 29 December 2021, the player granted the club with a final deadline of 3 days to
confirm if the contract was still valid, otherwise he would deem it terminated without just
cause.
5.
On an unspecified date, the club sent a notice to the player with the following content:
“We inform you that you need to arrive at the location of the club according to the schedule of
team U19.
Also inform you that according to the rules of the Regulations, players born in 2004 and
younger (with Regulatory exceptions) take part in competitions U19, and the coach of the club's
main team did not include you in the list of persons invited to training camps with the first
team.
In connection with the above and the current contract, we inform you about a possible loan
transfer until the end of the 2021/22 football season to another football club, while you can
independently search for a club to which you will transfer on a loan basis.”
6.
On 4 February 2022, the player replied to the club and explained that he considered the
contract terminated in light of the club’s failure to reply to his notices, and that as such
the instructions issue by the club were invalid.
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7.
Following the termination of the contract, the player remained unemployed.
II. Proceedings before FIFA
8.
On 12 May, the player filed the claim at hand before FIFA. A brief summary of the position
of the parties is detailed in continuation.
9.
According to the player, the club terminated the contract without just cause on 2 January
2022 by failing to reply to his letter of 29 December 2021. The player furthermore
highlighted that the club’s behavior indicates it was no longer interested in his services
and that the clubs conduct was abusive in that it was designed to force the player to
terminate the contract.
10. He seeks the following amounts:
“- Art. 1 of Appendix stipulates I was entitled to:
o USD 625 from 24 February 2021 to 30 June 2021
o USD 870 from 1 July 2021 to 30 June 2022
o USD 1,245 from 1 July 2022 until 30 June 2023
o USD 1,245 from 1 July 2023 until 30 June 2024
- As explained in the claim, I considered the contract terminated on 2 January 2022.
- Therefore the remaining value of the contract is:
o 6 months (January to June 2022) x USD 870 = USD 5,220
o 24 months (July 2022 to June 2024) x UD 1,245 = USD 29,880
- Total compensation is USD 35,100 (USD 5,220 + USD 29,880) plus 5% interest.”.
11. In its reply, the club made the following substantive allegations:
1. Football club "Vorskla" was surprised by the claims of the player and the opening of a
lawsuit against the club.
2. In his claim, the player states that at start of December 2021 Club informed him that the
Contract has been cancelled. At the same time, no evidence of termination of the contract with
the player was provided (taking into account the provisions of clause 6.1. of the contract).
3. The player also indicates that he was removed from accommodation and he has to stay in
a hotel which he pays. No evidence for such claims has been provided either.
4. The player was indeed notified that he could be loaned to another club (while the player
himself could search for such a club) (at the same time, the club indicated that the player's
contract is valid (current), but since there were no loan offers for the player, the player was
included in the U19 team list for the second part of the championship. At the same time, it
should be noted that the player was never involved in the main team and took part exclusively
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in the Ul9 youth championship matches (official statistics of the player are provided to prove
such statements).
5. It should be noted that the player independently left the location of the team during the
vacation period (winter period, lack of play and preparation).
6. Given the position of the player in the claim, he himself considers the contract terminated.
The club did not give consent to the termination of the contract, did not leave and did not sign
the necessary additional agreements regarding this.
7. The club is interested in the player in any case (for Ul9 team). This is evidenced by the
inclusion of the player in the application for the second part of the 2021/22 football season,
the payment of wages.
8. On February 24, 2022, the Russian Federation launched an armed aggression against
Ukraine, which became the basis for the introduction of martial law from 05:30 on February
24, 2022 for a period of 30 days in accordance with the Decree of the President of Ukraine of
February 24, 2022 No. 64/2022 "On the introduction of martial law state of affairs in Ukraine"
(the corresponding martial law was extended by Presidential Decrees until April 25, 2022, May
25, 2022 and August 23, 2022, respectively). With this in mind, the players of the U19 team
were transferred to a special payment regime (evidence is attached).
9. The player did not take advantage of the right granted to him the provisions of FIFA Annex
7 of the Regulations on the Status and Transfer of Players (edition March 2022) ("Temporary
rules addressing the exceptional situation deriving from the war in Ukraine"); the player did
not transfer to another club (outside of Ukraine), therefore, as of today, FC "Vorskla" Poltava
considers the player a member of its Ul9 team and is waiting for the beginning of the training
camp in Poltava, Ukraine.
10. The fact that the Club is interested in the player can also be confirmed by the fact that the
Club did not apply any penalties to the player for the fact that the player did not appear at the
club's location after the holiday in the winter of 2021/22.
11. The club had no intentions to terminate the contract with the player. No draft documents
were drawn up on this issue, there were no registrations for terminating the contract, in FIFA
TMS the player is an active member of the FC "Vorskla" Poltava.
12. The player's claims (demands) are considered groundless, they are not supported by any
evidence of termination of the contract with him, they contradict the provisions of the player's
current contract with the club, so they must be rejected.”
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether she was competent to deal with the case at hand. In
this respect, she took note that the present matter was presented to FIFA on 12 May 2022
and submitted for decision on 31 August 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.
13. 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 par. 1 lit. b) of
the Regulations on the Status and Transfer of Players (July 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 an Ivorian player
and a Ukrainian club.
14. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (July 2022 edition),
and considering that the present claim was lodged on 12 May 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
15. 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, she stressed the
wording of art. 13 par. 4 of the Procedural Rules, pursuant to which she 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
16. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, she started by acknowledging all
the above-mentioned facts as well as the arguments and the documentation on file.
However, she emphasised that in the following considerations she will refer only to the
facts, arguments and documentary evidence, which she considered pertinent for the
assessment of the matter at hand.
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i. Main legal discussion and considerations
17. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the first dissent between the parties is whether the
contract was indeed terminated, because the club considers the player to still be a part
of its U19 team.
18. In this respect, the Single Judge acknowledged from the evidence on file that the player
considered the contract terminated on 2 January 2022 based on the club's failure to reply
to his notices. As such, the Single Judge confirmed that the contract was terminated on
such date, as further outlined in the player’s letter of 4 February 2022. Accordingly, the
Single Judge ruled that any argumentation of the club regarding any facts that took place
after the termination are not material to the outcome of the dispute, which includes the
unfortunate outbreak of the war in Ukraine.
19. In continuation, the Single Judge proceeded to address the question whether the contract
was terminated with or without just cause. In this respect, she first noted that (a) the club
never responded to the player’s default notices; and (b) there is no evidence on file to
demonstrate that the player continued to be part of the club’s first team up until the
contract termination.
20. At the same time, the Single Judge outlined that there is no evidence filed by the club to
demonstrate payment of the player’s salary. Furthermore, while there is no evidence from
the player regarding his eviction from the apartment, there is also no evidence from the
club that such deeds never took place.
21. In the end, considering a balance of probabilities and giving particular weight to the club’s
inaction and lack of response to the multiple notes sent by the player, the Single Judge
concluded that the club ceased to have interest in his services.
22. Consequently, the Single Judge decided that the contract was terminated with just cause
by the player and the club must endure the consequences that follow.
ii. Consequences
23. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the club. In doing so,
she turned to the calculation of the amount of compensation payable to the player by the
club in the case at stake and 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
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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.
24. In application of the relevant provision, the Single Judge held that she had to clarify
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, she established that
no such compensation clause was included in the employment contract at the basis of
the matter at stake.
25. 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. She recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
26. 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,
she concluded that the amount of USD 35,100 (i.e. the residual value of the contract
calculated from January 2022 to June 2024) serves as the basis for the determination of
the amount of compensation for breach of contract.
27. 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 Football Tribunal 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.
28. Indeed, the player did not find new employment and thus no mitigation can be factored
in the calculation. Equally, the Single Judge referred to art. 17 par. 1 lit. ii) of the
Regulations, according to which a player is entitled to an amount corresponding to three
monthly salaries as additional compensation should the termination of the employment
contract at stake be due to overdue payables, and where mitigation exists. In the case at
hand, the Single Judge therefore decided that the player shall not receive additional
compensation.
29. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Single Judge decided that the club must pay the amount of USD
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35,100 to the player, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
30. Lastly, taking into consideration the player’s request as well as the constant practice of
the Football Tribunal in this regard, the Single Judge decided to award the player interest
on said compensation at the rate of 5% p.a. as of the date of claim until the date of
effective payment.
iii. Compliance with monetary decisions
31. 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.
32. In this regard, she 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.
33. Therefore, bearing in mind the above, the Single Judge decided that the club must pay the
full amount due (including all applicable interest) to the player within 45 days of
notification of the decision, failing which, at the request of the player, 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 club in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
34. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
35. 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
36. 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, she decided that no procedural costs were to be
imposed on the parties.
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37. Likewise and for the sake of completeness, she recalled the contents of art. 25 par. 8 of
the Procedural Rules, and decided that no procedural compensation shall be awarded in
these proceedings.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Salia Cherif Konate, is accepted.
2.
The Respondent, FC Vorskla Poltava, has to pay to the Claimant USD 35,100 as
compensation for breach of contract without just cause plus 5% interest p.a. as from 12
May 2022 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
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
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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