Labour Disputes
Texto da decisão
REF. FPSD-7766
Decision of the
Dispute Resolution Chamber
passed on 21 September 2023
regarding an employment-related dispute concerning the player Didier
Lamkel Ze
COMPOSITION:
Frans de Weger (Netherlands) , Chairperson
Michele Colucci (Italy), member
Dana Mohamed Al-Noaimi (Qatar), member
CLAIMANT:
OMONOIA FC , Cyprus
Represented by Juan de Dios CRESPO PEREZ; Alfonso LEON LLEO
RESPONDENT I:
Didier Lamkel Ze, Cameroon
Represented by Guy San Bartolome Sarrey
RESPONDENT II:
R. Antwerp FC, Belgium
Represented by Sven DEMEULEMEESTER; Willem-Alexander DEVLIES
RESPONDENT III:
K.V. KORTRIJK
Represented by Ben Leyman; Kristof De Saedeleer
pg. 2
REF. FPSD-7766
I. Facts of the case
1.
On 18 July 2022, the Cypriot club OMONOIA FC (hereinafter: Claimant or Omonoia) submitted a
proposal to the Belgian club, R. Antwerp FC (hereinafter: Respondent II or RAFC) for the transfer of
the Cameroonian player, Didier Lamkel Ze (hereinafter: Respondent I or player), on a definitive basis,
proposing the following terms:
1.
“Transfer fee of € 100,000 to Royal Antwerp FC
2.
Conditional bonus of €100,000 in case our Club qualifies for the UEFA Europa League Group Stages during
the season 2022/23
3.
Conditional bonus of €300,000 in case our Club qualifies for the UEFA Champions League Group Stages
during the season 2023/24
4.
Conditional bonus of €150,000 in case our Club qualifies for the UEFA Europa League Group Stages during
the season 2023/24
5.
Conditional bonus of €100,000 in case our Club qualifies for the UEFA Europa Conference League Group
Stages during the season 2023/24
6.
Conditional fee of €100,000 provided to Royal Antwerp FC if our Club wins the Cypriot National
Championship during the duration of the contract of the player with our Club
7.
20% sell on fee to Royal Antwerp FC, of any potential future sale of the player, from our Club to a third
Club during the duration of his contract.”
2.
On 19 July 2022, RAFC send a counter-proposal to Omonoia.
3.
On 24 July 2022, Omonoia sent an offer (hereinafter: the offer) to the player which was accepted and
signed by the player on the same day.
4.
In accordance with the offer, Omonioa undertook to pay the following remuneration to the player:
-
Signing fee of €100,000 which will be payable three (3) days upon the signing of the agreement.
-
From 01/08/2022 to 31/07/2023, a monthly net salary of €33,165 payable on the last day of every month,
beginning on 31/08/2022 until 31/07/2025.
-
From 01/08/2023 to 31/07/2025, a monthly net salary of €41,500 payable on the last day of every month,
beginning on 31/08/2023 until 31/07/2025.
5.
Clauses 3 and 4 of the offer, stipulated the following:
“This offer is valid for 24 hours. This offer will have no legal effect whatsoever unless a written and binding
employment agreement• with all the matters that should be settled is signed between the Player and the
Club. Without a binding and valid contract (including the signed Employment Contract agreement form)
the Player will not be entitled to any of the above payments and benefits.
This offer is not an agreement and/or pre agreement by any means.”
pg. 3
REF. FPSD-7766
6.
On 29 July 2022, Omonoia and RAFC concluded a transfer agreement (hereinafter: transfer
agreement) for the permanent transfer of the player.
7.
Clause 10 of the transfer agreement, stipulated the following:
“This agreement is conditional upon the fulfilling of the following conditions on 01/08/2022 at the
latest:
-
The Player passes successfully the medical exams of OMONOIA.
-
The Player and RAFC having terminated the employment agreement as per
29/07/2022.
-
The Player agrees to the terms and conditions and signs his professional contract with the
club OMONOIA by the 01/08/2022 at the latest.
-
In order to comply with the Belgian anti-money laundering legislation, OMONOIA has sent RAFC a fully
completed 'Know Your Customer' form, including the Information and documentation listed therein, to
the satisfaction of RAFC.
If any or all the above conditions are not fulfilled {timely), then this agreement shall be automatically
terminated and will be of no effect and further neither party shall have any obligation to the other
hereunder. In addition, OMONOIA shall not be obliged to register the Player and no payment or otherwise
shall be due from the club OMONOIA to the club RAFC. In such case the Player shall return to RAFC under
the terms and conditions of his existing employment agreement with RAFC. No party shall be released
from any liability or right of action or claim which has already accrued or may accrue in respect of any
act or omission prior to the Agreement being considered null.”
8.
On 30 July 2022, Omonoia sent a draft of the employment contract to the player, which allegedly
contained the same terms as the offer, which last page was signed by the player.
9.
On 23 August 2022, Omonoia sent a further contract to the player, signed by the club and completed
it with the last page of the contract as previously signed by the player, with the conditions indicated
as follows:
“Appointment and Duration
1.1.
The duration of this Contract shall be from 23/08/2022 to 31/07/2025.
1.2.
The Club engages the Player as a professional footballer for the Club’s A team.
1.3.
The Player’s net remuneration shall be as follows:
1.3.1.
From 23/08/2022 to 31/07/2023, total amount of €397,980 net, in 12 equal a monthly salary
of €33,165 (€40,820 Gross) payable on the last day of every month, beginning on 31/08/2022
until 31/07/2023.
1.3.2.
From 01/08/2023 to 31/07/2024, total amount of €498,000 net, in 12 equal a monthly salary
of €41,500 (€50,930 Gross) payable on the last day of every month, beginning on 31/08/2023
until 31/07/2024.
1.3.3.
From 01/08/2024 to 31/07/2025, total amount of €498,000 net, in 12 equal- a monthly salary
pg. 4
REF. FPSD-7766
of €41,500 (€50,930 Gross) payable on the last day of every month, beginning on 31/08/2024
until 31/07/2025.
1.4.1.
€835 net per month of employment as Housing Allowance payable in monthly instalments on
the last day of every month
1.4.2
Car shall be provided by the Club to the Player during of this Employment Agreement.
Any other payments and bonuses shall be payable as follows:
1.5.1.
€1,500 NET per goal of the Player at all the official games (Super Cup Championship, Cup and
European), payable at the end of each season.
1.5.2.
€1,500 NET per assist of the Player at all the official games (Super Cup Championship, Cup and
European), payable at the end of each season.
1.5.3.
€25,000 NET if the player will be voted as the best football player of the league by the Cypriot
Football Association, payable at the end of each season.
1.5.4.
€25,000 NET if the player will be the top scorer of the league, payable at the end of the season.
1.5.5.
Two (2) round trips tickets for the player or a member of his family from France to Cyprus.
1.5.6.
Extra Bonus: According to the Internal Regulations of the Club”
10. On 31 July 2022, the player arrived in Cyprus and upon his arrival, Omonoia informed him of his
medical examinations the next day.
11. On 1 August 2022, Omonoia indicated that the player “did not arrive for medical examinations,
therefore an official from Omonoia enquired whether he would attend such exams to which the Player
simply replied "no" again arguing that he was "tired' with "pain in his knee" and with a "headache".
Thereafter, a short meeting between the Player and the Club's President took place where the Player
refused again to do any medical tests.”
12. On 1 August 2022 the player departed Cyprus without authorisation of Omonoia.
13. On 2 August 2022, the player, and the president of Omonoia, engaged in WhatsApp correspondence.
14. On 9 August 2022, Omonoia sent a letter to the player, informing him that he is in breach of contract
and granted him another opportunity to fulfil his contractual obligations, and therefore invited the
player for a medical examination on 11 August 2022.
15. On 14 August 2022, the player sent a WhatsApp message to Omonoia emphasizing “that he has
chosen to play elsewhere, and my decision is already 100% made so good luck to you”.
16. On 17 August 2022, the player sent the following messages to the president of Omonoia:
"{G]ood evening president! I hope you are well, and I say you are already in Belgium, well I am
coming back to you already to apologize here and to tell you that I have thought about it and I
have made a decision I am going to play with Omonoia this season, there were a few problems
pg. 5
REF. FPSD-7766
but that's life.”
17. On 18 August 2022, after another conversation with the president of Omonoia, the player confirmed
that he was ready to sign the contract and join Omonoia.
18. On the same day, the player sent a message to the president of Omonoia, mentioning that he is not
mentally prepared to sign with Omonoia.
19. On 20 August 2022, the player sent the following message to the president of Omonoia.
"Hello Mr Owner! I hope you are well sorry for the other time I was not mentally well because my father
had an accident and I was a little mentally ill, but I already signed the contract, and I will send to [the
Player's Agent](. . .) at 100% I will come there will be no problem to make an appointment for mv visa
tomorrow or Monday"
20. On 22 August 2022, correspondence was exchanged between the player and Omonoia, relating to
his visa, the signing of the contract and arrangements for his travel.
21. On 23 August 2022, Omonoia sent to the player a version of the contract signed by it and used the
signed last page of the contract that the player had sent allegedly in and around 30 July 2023.
22. On the same day, the player replied to Omonoia and inform it that he has not signed a contract with
them, he will not travel to Cyprus and that he has already signed with a different club from Belgium.
23. On 23 August 2022, Omonoia sent a letter to K.V Kortrijk (hereinafter: Respondent III or Kortrijk)
informing it of the contractual relationship between Omonoia and the player, further requesting it
to refrain from any contact with the player, if any.
24. On 24 August 2022, Kortrijk replied to Omonoia's letter, inter alia, disputing that the player had
signed a contract with Omonoia.
25. On 30 August 2022, Omonoia “managed to sign a contract with Mr Karim Ansarifard whose services
were acquired by Omonoia exclusively because of the player's refusal to honour his contractual
obligations towards Omonoia.”
26. The player signed an employment contract with Kortrijk valid as from 25 August 2022 until 30 June
2025.
II. Proceedings before FIFA
27. On 5 October 2022, the club filed the claim at hand before FIFA.
28. On 21 March 2023, the parties were informed by FIFA that pursuant to article 26 of the Procedural
Rules, on behalf of the Chairperson of the Dispute Resolution Chamber (article 4 par. 6 of the
pg. 6
REF. FPSD-7766
Procedural Rules), it deemed that mediation is appropriate in the matter at hand and therefore the
parties were invited to mediate and to confirm by 31 March 2023 at the latest whether they agree
to mediate their dispute.
29. On 14 April 2023, FIFA informed the Claimant that all the Respondents are in agreement to mediate
and requested the Claimant to confirm by latest 18 April 2023 whether it agreed to mediate.
30. On 19 May 2023, FIFA informed the parties that the Claimant indicated that it would not be part of
any mediation proceedings.
a. Position of the club
31. In its claim, the argued that:
-
That the parties “were in a contractual relationship, even if Omonoia's signature was not strictly
necessary as the Contract had been perfected, not only with the binding initial Offer, but also with
Omonoia sending the final draft Contract (constituting an offer) and the Player sending back the same
version signed by himself (constituting an acceptance).”
-
The player’s inconsistent behaviour must be interpreted against him.
-
The player terminated the offer/contract without just cause by concluding a contract with Kortrijk.
-
The player must compensate Omonoia as per the principle of culpa in contrahendo, which basically
imposed an obligation on parties to act in good faith during contractual negotiations.
32. The request of relief of the club were as follows:
“1) The present claim filed by Omonoia Football Club is admissible.
2) Mr Didier Lamkel Ze shall pay to Omonoia Football Club the amount of EUR 3,000,000 as compensation
for breach of contract or on the basis of the principle of culpa in contrahendo plus 5% interest p.a. as
of 4th of October 2022.
3) Subsidiarily
Mr Didier Lamkel Ze shall pay to Omonoia Football Club any other amount which the DRC finds fair and
just, but of no less than EUR 2,545,002 plus 5% interest p.a. as of 4th of October 2022.
In all cases
4) Royal Antwerp Football Club and KV Kortrijk are jointly and severally liable for the payment of the
awarded compensation.
5) A restriction of four months on his eligibility to play in official matches is imposed on Mr Didier
LamkelZ6.
6) Royal Antwerp Football Club and KV Kortrijk, shall be banned from registering any new players, either
nationally or internationally, for the two next entire and consecutive registration periods.
7) Mr Didier Lamkel Ze, Royal Antwerp Football Club and KV Kortrijk shall contribute towards the legal
pg. 7
REF. FPSD-7766
expenses of Omonoia Football Club in an amount of no less than CHF 20,000.”
b. Position of the player
33. In its reply, the player referred to clause 10 of the transfer agreement and mentioned that the
conditions of the said clause were not fulfilled, specifically the following:
-
The Player did not successfully pass the medical exams of OMONOIA FC.
-
The Player and RAFC did not terminate the employment agreement as per 29/07/2022.
-
The Player did not sign his professional contract with OMONOIA FC by 01/08/2022.
34. The player indicated that he did not sign an employment agreement with Omonoia and as per the
offer provided by the latter, the parties agreed that the offer does not constitute a contract or precontract by any means and has no binding legal effect to this extent.
35. In relation to the medical examination, the player mentioned that travelling to Cyprus was
challenging as he arrived at the hotel at midnight, the day prior the club requested him to take the
exam, tired and moreover suffering from a knee injury, hence the said examination was never
conducted.
36. According to the player upon receipt of the draft contract, the terms and conditions differed from
that of the offer, which he therefore questioned.
37. Additionally, the player indicated that another reason for his refusal to sign the contract is that he
was a victim of multiple racial and xenophobic remarks made by the fans of Omonoia on his initial
arrival in Cyprus which Omonoia failed to mention.
38. On 3 August 2022 RAFC, sent a letter to the player, inter alia, indicating “ you are still a RAFC player
and we ask you to leave Cyprus and register in Antwerp as soon as possible.”
39. On 3 August 2022, the president of Omonoia, inter alia, informed the player via WhatsApp that he is
in breach of contract and gave the player 2 days’ notice to remedy the breach and return to Cyprus.
40. On 3 August 2022, the player informed the president of Omonoia that has been subjected to racial
messages by the supporters of Omonoia, and that he would choose “where to play for his safety and
health.”
41. The player maintains that no contractual agreement was reached between the parties.
42. In conclusion, the player requested the following relief:
"PAR CES MOTIFS,
SOUS TOUTE RESERVE DE DROIT EN PROSECUTION DE CAUSE,
pg. 8
REF. FPSD-7766
S 'ENTENDRE DIRE la plainte recevable et NON fondee.
A titre principal, constater l'absence de contrat (pre contrat) liant Monsieur D. LAMKEL ZE a OMONIA FC
et, par consequent, rejeter toute demande (compensation / sanction sportive) formulee par OMONIA FC.
A titre subsidiaire, constater l'absence de violation du principe « Culpa in Contrahendo » et par
consequent, rejeter toute demande (compensation/ sanction sportive) formulee par OMONIA FC.
A titre infiniment subsidiaire, a supposer retenir le pre contrat voire la Culpa in Contrahendo, le cas
echeant, ne rien retenir a l'encontre de Monsieur D. LAMKEL ZE voire tout au plus une condamnation
equivalente a un mois de salaire moyen (soit 26.582,50 € = 33.165 € + 20.000 € / 2) nonobstant l'absence
de toute sanction sportive.
En toute hypothese, a supposer quelque condamnation financiere a l'encontre de Monsieur D. LAMKEL ZE,
conformement a l'article 17.2 FIFA RSTP, tant le RAFC que KORTRIJK VOETBALT CVBA
S'ENTENDRE REJETER toute pretention plus ample d'OMONIA FC, du RAFC et de KORTRIJK VOETBALT CVBA."
c. Position of RAFC
43. In its reply, RAFC’s position is summarised as follows:
•
“Primarily, the Player is not liable towards Omonoia for breach/termination of contract without just
cause, as no valid contractual relationship has ever existed between the Player and Omonoia, due to the
fact that the Omonoia Offer clearly did not constitute a binding employment contract, no actual final and
binding employment contract was ever signed thereafter, the Player’s behaviour cannot be interpreted
against him and the Transfer Agreement between Omonoia and RAFC had become moot either way;
•
Subsidiarily, the Player is also not liable towards Omonoia for violating the principle of culpa in
contrahendo, as the conditions therefore were not fulfilled, as the Player had valid reasons to break off
the negotiations, as Omonoia could reasonably expect the negotiations to fall through as it happened
multiples times before, Omonoia itself displayed faulty behaviour and as Omonoia did not evidence that
the Player never had any true intention to sign with Omonoia;
•
Since the Player is not liable to pay any compensation under art. 17 (1) RSTP towards Omonoia, RAFC
cannot be held jointly and severally liable under art. 17 (2) RSTP and no sporting sanctions can be imposed
on RAFC under art. 17 (4) RSTP.
•
Subsidiarily, in the impossible event the DRC would find the Player liable towards Omonoia for breach of
contract without just cause or for a violation of the principle culpa in contrahendo, quod non, RAFC’s
position is as follows:
o
RAFC reserves all rights regarding the illegality of article 17 RSTP;
o
the compensation claimed by Omonoia in the amount of EUR 3,000,000 cannot be withheld and
pg. 9
REF. FPSD-7766
is completely disproportionate. Rather than losing money, Omonoia saved money (it would have
paid at least EUR 1,893,980 for the Player, whilst it now only paid EUR 1,200,000 for the
Player’s replacement, hence saving EUR 693,980), so therefore Omonoia has no damages.
•
RAFC cannot be considered as the new club of the Player under the joint and several liability principles
under art. 17 (2) RSTP, as (i) KVK was the first club where the Player registered following the alleged breach,
and as (ii) RAFC was not the club benefitting from the breach.
•
Lacking a clear provision in the FIFA RSTP, RAFC cannot be held liable for any damages that might be
awarded under the legal principle of culpa in contrahendo.
•
No sporting sanctions can be imposed on RAFC under art. 17 (4) RSTP, as (i) RAFC was not the new club
where the Player signed a new contract, and (ii) as RAFC discharged its burden of proof by evidencing that
it never induced to Player to commit any breach of contract.
•
In any case:
No contribution towards Omonoia’s legal fees can be ordered under art. 25 (8) of the Procedural
Rules.
By way of a counterclaim, sporting sanctions should be imposed on Omonoia pursuant to art. 17 (4)
and 18 (3) RSTP.
If any damages were to be awarded, RAFC requests that the Player shall primarily be held responsible,
whilst Ferencvaros shall be the one held jointly and severally liable”
44. In conclusion, RAFC requested the DRC to issue a decision establishing that:
“All of the claims filed by Omonoia are unfounded and rejected in full, as the Player did not terminate
or breach any contract with Omonoia without just cause, nor did the player violate the principle of culpa
in contrahendo;
Subsidiarily, in the event that the Player is considered liable towards Omonoia for whatever reason and
after having granted RAFC the reservation of its rights as regards the illegality of art. 17 RSTP, hold that:
the amount of compensation due by the Player to Omonoia under art. 17 (1) RSTP should be reduced to
zero, as Omonoia in fact did not incur any damages and saved expenses by not signing the Player;
RAFC is not the Player’s new club under art. 17 (2) RSTP, and therefore cannot be considered jointly and
severally liable to pay any of the compensation awarded; More subsidiarily, Ferencvaros should be
included in the present proceedings as a respondent in view of being the new club of the Player and in
view of having induced the Player to a breach of contract with Omonoia;
No sporting sanctions can be imposed on RAFC under art. 17 (4) RSTP as it falls out of the scope of said
article and as it met its burden of proof not having induced the layer to any breach of contract;
RAFC in any case cannot be held jointly and severally liable for damages awarded under the legal principle
of culpa in contrahendo;
In any case,
o
reject Omonoia’s claim for a contribution towards its legal fees;
pg. 10
REF. FPSD-7766
o
accept RAFC’s counterclaim and impose sporting sanctions as per art. 17 (4) and art. 18(3) RSTP on
Omonoia for inducing the Player to breach his contract with RAFC.”
d. Position of Kortrijk
45. In its position to the claim, Kortrijk, argued that:
-
“The conditions of the Offer and the First Transfer Agreement were not met.
-
The Player did not sign a valid and binding employment contract.
-
No registration of the Player by OMONOIA in TMS
-
In the opinion of KORTRIJK, it is up to the DRC to decide-whether or not the player, disrespected the
principle of culpa in contrahendo - It cannot be held responsible for the behaviour of the Player and
cannot be jointly and severally liable to pay any form of compensation because of the Player's violation
of the principle of culpa in contrahendo.
-
KORTRIJK cannot be seen as the 'new club', as it did not directly profit from the alleged breach of contract
since the Player left Cyprus on 1 August 2022, not to go to KORTRIJK, but to return to RAFC to resume his
obligations towards RAFC (train and play games there).
-
No compensation is due to Omonoia.”
46. In conclusion, Kortrijk requested the following relief, the DRC to issue a decision in the following
terms:
-
“Preliminary, to suspend the current proceedings until the relevant annexes of the exhibits no. 11 and 17
are transferred.
-
To order OMONOIA to submit the original written employment agreement signed by both parties
(OMONOIA FC and the Player).
-
In all cases, to reject the entire claim of OMONOIA.
-
In subsidiary order, to confirm that KORTRIJK is not the new club.
-
In more subsidiary order, if KORTRIJK is to be seen as the new club, quad eerie non, to establish that KV
KORTRIJK cannot be held jointly and severally liable to pay cmpensation for breach of contract-to
OMONOIA.
-
In even more subsidiary order, if KORTRIJK is to be considered as the new club and jointly and severally
liable, quad eerie non, no compensation have to be paid to OMONOIA by KORTRIJK, at least, to, reduce
the-claimed amount to an absolute minimum.
-
To order OMONOIA to assume the entirety of the FIFA OCR administration and procedural fees, if any.”
pg. 11
REF. FPSD-7766
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 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 5 October 2022 and submitted for decision on 21
September 2023. 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.
2.
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 October 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 Cypriot club, a Cameroonian player and two Belgian clubs.
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 (October 2022 edition) and considering that the
present claim was lodged on 5 October 2022, the October 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.
5.
Merits of the dispute
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.
pg. 12
REF. FPSD-7766
i. Main legal discussion and considerations
6.
The foregoing having been established, the Chamber moved to the substance of the matter, and
took note of the fact that this is a claim of a club against a player for breach of contract, subsequently
holding RAFC and Kortrijk jointly and severally liable together with a counterclaim being lodged by
RAFC.
7.
In this context the Chamber took note that Omonoia held that based on the circumstances of this
specific case, it could not clearly establish whether RAFC or Kortrijk should be considered as the
“new club” on the basis of art.17 of the Regulations. In this regard the Chamber observed that the
player had a contract with RAFC, and then he was transferred to Omonoia, moreover after the player
departed Omonoia he returned to RAFC and was then thereafter transferred to Kortrijk.
8.
In continuation, the Chamber noted that, Omonoia provided a copy of an employment contract,
with the last page signed by the player together with the offer, which was not contested by the
parties. The Chamber observed that Omonoia deems that the parties had a valid and binding
employment contract in place on the basis of the offer and the signature of the player reflected on
the last page of the contract.
9.
The Chamber further noted that the player claims that he never signed a final contract with
Omonoia, and furthermore that this argument is supported by both RAFC and Kortrijk. Additionally
the Chamber observed that the player further explained that the reason that he never signed the
contract is due to the fact that (i) the conditions of the offer was not completely fulfilled; (ii) the terms
and conditions of the draft contract differed from that of the offer and (iii) he was the victim of
multiple racial remarks made by the fans of Omonoia on his initial arrival in Cyprus, impacting his
health and safety which in his opinion was disregarded by Omonoia.
10. On account of the above, the Chamber deemed that it was important to recall the following events
which transpired between the parties, which in general was not disputed by any of the parties:
-
On 24 July 2022, the offer was signed by both Omonoia and the player.
-
On 29 July 2022, the transfer agreement was signed between Omonoia, RAFC and the player.
-
On 1 August 2022 the player departed Cyprus without authorization of Omonoia
-
On 3 August 2022 RAFC, informed the player that he is “still a RAFC player and that he should leave
Cyprus and register in Antwerp as soon as possible.”
-
On 3 August 20222, Omonoia, informed the player he is in breach of contract and gave him 2 days’
notice to return to Cyprus and in reply, the player informed Omonoia that he has been subjected to
racial messages by the supporters of Omonoia, and that he would choose “where to play for his safety
and health.”
-
On 18 August 2022, the player confirmed that he was ready to sign the contract and join Omonoia.
-
On 20 August 2022, the player informed Omonoia via WhatsApp that he has signed the contract.
-
On 23 August 203, the player informed Omonoia that he has not signed a contract with them, that
he will not travel to Cyprus and that he has already signed with a club from Belgium (Kortrijk)
pg. 13
REF. FPSD-7766
-
On the aforesaid date the player, RAFC, Kortrijk concluded a transfer agreement for the definitive
transfer of the player from RAFC to Kortrijk and the player and Kortrijk concluded an employment
contract.
-
On 30 August 2022, Omonoia signed a replacement player.
11. Considering the foregoing, the Chamber understood that Omonoia and the player indeed had a
valid and binding employment contract in place, in the sense that the offer contained all essentialia
negotii, moreover the subsequent signing of the last page of the employment contract by the player,
seem to have confirmed the validity of the employment relationship between the player and
Omonoia.
12. Following the aforesaid, the Chamber found it important to mention the following:
(i)
The behaviour of the player, which seemed to have lacked transparency and was indeed
inconsistent as to his position, hence Omonoia could have genuinely believed that the player would
proceed with the contract. He signed an offer, travelled to Cyprus, obtained a visa, kept going back
and forth in his WhatsApp correspondence with the president of Omonoia etc. as to him joining
Omonoia as a player.
(ii)
According to the information in TMS, it can be established that Omonoia never obtained the player’s
ITC, neither was the potential transfer of the player to Omonoia recorded in TMS.
(iii) Omonoia, however made numerous attempts as highlighted above to secure the player’s presence
and service in Cyprus and inconsideration of the imminent closure of the transfer window, signed
with another player.
(iv) At the same time, the Chamber highlighted the fact that player informed Omonoia as to his mental
state, as well as about the racial online abuse he endured from Omonoia’s fans. In this context the
racial online abuse could have been genuinely distressing to the player and on analysis of the
documentary evidence on file provided by the player, it can be considered that he no longer felt safe
to continue with the employment relationship with Omonoia.
13. At this point the Chamber found it important to make a general remark in respect of the racial online
abuse experienced by the player and mentioned, that though the racial online abuse was not
directed by Omonoia, the Chamber deemed that on analysis of the documentation on file such
remarks were not completely disregarded by Omonoia.
14. Furthermore, the Chamber highlighted that FIFA and the Football Tribunal strongly condemn and
rejects any form of racism and has a very clear zero tolerance stance for such behaviour in football.
15. Taking all of the above into account, the Chamber concluded that although an employment
relationship was determined between Omonoia and the player, neither of the parties started to
execute the contract, the player never started playing for Omonoia, Omonoia never paid any of the
player’s remuneration, the player’s ITC was not requested by Omonoia, and no payment of any
pg. 14
REF. FPSD-7766
transfer fees was paid by Omonoia to RAFC, moreover it concluded a contract with another player
within the same month of the player’s departure from Cyprus.
16. Therefore, on account of all the above elements, the Chamber concluded that the parties de facto
departed from the execution of the contract.
17. Following the said conclusion, the Chamber decided that consequently, there is no entitlement to
any potential compensation in the present matter to any of the parties.
18. Accordingly, the Chamber decided that the claim of Omonoia is entirely rejected.
19. Moreover, and for the sake of completion, the Chamber deemed that the counterclaim of RAFC was
considered moot as it did not comply with the mandatory formalities established in art.18 par.1 of
the Procedural Rules.
d. 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. 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.
22. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of
the parties.
pg. 15
REF. FPSD-7766
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, OMONOIA FC, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 16
REF. FPSD-7766
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. 17