Labour Disputes
Texto da decisão
REF FPSD-4347
Decision of the
Dispute Resolution Chamber
passed on 15 September 2022
regarding an employment-related dispute concerning the player Pape- Alioune Ndiaye
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Tomislav Kasalo (Croatia), member
Jerome Perlemuter (France), member
CLAIMANT / COUNTER-RESPONDENT:
FC Vorskla, Ukraine
Represented by Asters Law
RESPONDENT / COUNTER-CLAIMANT:
Pape-Alioune Ndiaye, France
Represented by Brandsmiths
INTERVENING PARTY:
SCR Altach, Austria
Represented by Brandsmiths
Page 2
REF FPSD-4347
I.
Facts of the case
1.
On 29 August 2019, the Ukrainian club, FC Vorskla (hereinafter: the Claimant/Counter-Respondent
or club), and the French player, Pape-Alioune Ndiaye (hereinafter: the Respondent/Counter-Claimant
or player) signed an employment contract valid as from 30 August 2019 until 31 July 2021.
2.
In accordance with the contract, the club undertook to pay to the player, the following
remuneration:
“During the execution of his duties, the Club monthly pays the player an additional net payment:
from the commencement of this Contract until 31.12.2019 - 500 (five hundred) c.u./month;
after 5 (five) game in start 1st team Vorskla this is increased to - 1000 (one thousands) c.u. /month;
from 0 1.01.2020 - 1000 (one thousand) c.u./month;
from 0 1.07.2020 - 2000 (two thousand) c.u./month;
in the event the contract is extended pursuant to clause 1.4 from 01.07.2021 - 3000 (three
thousand) c.u./month. 1 c.u. = 1 US Dollar.”
3.
Clause 1.4 of the contract, inter alia, stipulates the following:
“The term of the Contract may be extended for 1 (one) year, if the Club 30 (thirty) days before the end of
the term of the Contract (paragraph 1 of the clause) has notified the Professional Football Player that it
is intends to extend to the term until 31.07.2022."
4.
Moreover, in terms of clause 1.5 of the contract, the contract can be extended or signed for a new
period if the parties agree to it.
5.
Clause 6.2 of the contract mentions - “Shall any of the Parties in case of Contract expiration (p. 1.4)
not will to extend its validity, the Contract shall expire as per p. 2. of Article 36 of Labor Code of Ukraine.”
6.
On 15 July 2020, the club in accordance with clause 1.4 of the contract notified the representatives
of the player of its intention to extend the contract, specifically, inter alia, mentioning the following:
"Based on paragraph 1.4. of the Contract No. 2908/19 August 29,2019, we inform you of the desire to
conclude an agreement to extend the Contract of Professional Football player Pape-Alioune
Ndiaye,04.02.1998, until 07/31/2022.”
7.
According to the club on 21 July 2020, the player’s representative confirmed the extension of the
contract, by specifically stating "We also would like to thank you for the faith you are giving to Pape
after extending his contract at Vorskla FC."
8.
Allegedly further correspondence was exchanged between the parties relating to the extension, in
terms of which it offered a four-year contract to the player, but its offer was rejected by the
representative of the player on the basis of “having a better offer from England.”
Page 3
REF FPSD-4347
9.
On 1 May 2021, the player played his last game for the club.
10. On 6 May 2021, the player received his monthly salary of USD 2000 as well as USD 300 for
apartment rental expenses.
11. On 9 May 2021, the football season 2020/2021 of the club closed.
12. In mid-May 2021, the player left Ukraine for a vacation, which according to the club “should have
lasted until 18 June 2021, when all players should have appeared in the Club.”
13. On 9 June 2021, the player left the Viber messenger group of the club, “which was used by all
coaching and administrative staff of the Club for receiving instructions and communications.”
14. According to…, on 18 June 2021, the player neglected to return from his vacation and to commence
preparation for the 2021/2022 season.
15. Allegedly, the club attempted to communicate with the player and his representatives, however
without any success.
16. On 29 June 2021 the club sent a letter to the player, informing him that he is in breach of contract,
moreover that he failed to arrive on 18 June 2021 for the training camp and further requesting that
he immediately arrive at the premises of the Claimant, which remained unanswered.
17. On the same date, the club sent a notification to the player informing him about the extension of
the contract until 31 July 2022.
18. On 13 July 2021, the legal representative of the player sent an email challenging the validity of
extension of the contract as detailed in clause 1.4 of the contract, stipulating the following:
“We have been made aware of an article which states that the Club will seek to bring legal proceedings
against Pape. There is no case against Pape, his contract has not been validly extended and it will
terminate on 31 July 2021. Furthermore, you are in breach of contract in relation to his May salary and
Pape has given you ten days’ notice in accordance with FIFA RTSP. He is now entitled to bring his claim
to FIFA DRC.
However, he would prefer to avoid a legal dispute and in order for all parties to move on, Pape has
instructed me to notify you that he will not bring his case before FIFA if you agree to terminate his
contract early and release his registration without delay. Note that he will also forego his salary for the
months of June and July until termination.”
19. On 26 August 2021, the club noticed a publication mentioning that player signed up with the
Austrian club, SCR Altach (hereinafter: Altach or the intervening party) and the next day the club was
informed about a request for the international transfer certificate from the Austrian Football
Association.
Page 4
REF FPSD-4347
20. On 28 August 2021, the club sent a notice to the player and Altach on the basis of which it proposed
to reach a settlement in the matter, however to no avail.
21. On 5 October 2021, the club sent a further request to the player and Altach proposing a settlement
in the matter, however to no avail.
22. On 25 August 2021 the player concluded a contract with Altach , valid from 25 August 2021 until
31 May 2023 for a total fixed remuneration in the amount of EUR 173,500.
II. Proceedings before FIFA
23. On 19 November 2021, the club filed the claim at hand before FIFA. A brief summary of the position
of the parties is detailed in continuation.
a.
Position of the club
24. The club asserts that the contract had been duly extended in June 2020 as per clause 1.4, which
has been subsequently confirmed by the player's representative, in any event, the contract has
been duly extended upon a second notification by the club in June 2021.
25. The club further argued that “from the literal interpretation of clause 1.4 of the contract that the
parties set out a condition precedent for automatic prolongation of the contract from 31.07.2021 till
31.07.2022 should the Claimant 30 (thirty) days before the end of the term of the Contract (1.07.2021)
notify the Respondent 1 that it intends to extend the term of the Contract until 31.07.2022. It should be
stated that the Contract is silent as to the proper form of such notification. More importantly, at the
time of the Contract conclusion the parties envisaged specific terms, which will enter into the force
should the condition precedent (notification by the Claimant) is triggered and which are beneficial for
the Player namely, the 30 increase of salary clause 1 of the Additional Agreement No 1 to the Contract.”
26. Moreover, the club indicated that the clause is valid and enforceable under Ukrainian law.
27. Accordingly, that the player breached the contract therefore, the breach was accomplished on 25
August 2021, when the player signed up a new employment agreement with Altach without
payment of compensation to the club
28. Therefore, based all of the above bring to one conclusion the contract was still valid and binding,
not only, it could have been extended also for another season, i.e. until 30 November 2023, but it
has been breached by the Respondent.
29. The club further argued that “from the literal interpretation of clause 1.3 of the contract that the
parties set out a condition precedent for automatic prolongation of the contract from 31.07.2021 till
31.07.2022 should the Claimant 30 (thirty) days before the end of the term of the Contract (1.07.2021)
notify the Respondent 1 that it intends to extend the term of the Contract until 31.07.2022. It should be
Page 5
REF FPSD-4347
stated that the Contract is silent as to the proper form of such notification. More importantly, at the
time of the Contract conclusion the parties envisaged specific terms, which will enter into the force
should the condition precedent (notification by the Claimant) is triggered and which are beneficial for
the Player namely, the 30 increase of salary clause 1 of the Additional Agreement No 1 to the Contract.”
30. Moreover, the club indicated that the clause is valid and enforceable under Ukrainian law.
31. Accordingly, that the player breached the contract therefore, the breach was accomplished on 25
August 2021, when the player signed up a new employment agreement with Altach without
payment of compensation to the Claimant.
32. The requests for relief of the Claimant, were the following:
(a)
“declare that player has seriously and continuously breached the Contract during the Protected period;
(b)
declare that the player has unilaterally terminated the Contract without just cause;
(c)
declare the player and Altach as jointly and severally liable for the breach of the Contract without just
cause;
(d)
Oblige the player and Altach as jointly and severally liable for payment of compensation of USD 990,000
(nine hundred and ninety thousand) and UAH 135,819.45 (one hundred thirty-five thousand eight
hundred nineteen hryvnyas and 45 kopeicks);
(e)
Oblige the player and Altach as jointly and severally liable for payment of the default interest at the rate
of 5% p.a. over the amount of awarded compensation starting from 27 August 2021 as of the time of
actual payment;
(f)
Impose a sporting sanction on the player of four-month restriction on playing in official matches;
(g)
Impose a sporting sanction on Altach of a ban from registering any new players, either nationally or
internationally, for two entire and consecutive registration periods;
(h)
To order the player and Altach jointly and severally to pay the full FIFA procedural costs, if any.”
b.
Combined Position of the player and the intervening party
33. Firstly, the player and Altach (the intervening party) both rejected the claim of the club.
34. In support of their argument, the following documents were submitted:
-
Witness Statement of the player dated 25 January 2022; (player)
-
Witness Statement of Mamadi Fofana dated 25 January 2022; (intermediary representative by
player)
-
Witness Statement of Makan Fofana dated 25 January 2022 (player scout)
-
Telephone conversation between player and club representatives
35. In its reply to the claim, the player indicated that during the season his representative, allegedly
attempted to contact the club to discuss his situation, however he was often ignored.
Page 6
REF FPSD-4347
36. The player confirms that he left the Viber messenger group on 9 June 2021, however he claims that
such an act cannot amount to a breach of contract.
37. Moreover, he indicated that an extension of the contract was never properly discussed until the
letter of 15 July 2020 sent to his representative, which according to player was not necessarily a
notice to extend the contract.
38. In reference to the said letter, the player argued that it only showed the intention to extend the
contract, as opposed to automatically extending it, it also shows that any extension required the
agreement of both parties.
39. Furthermore, the player claimed that he was never orally informed about the contract being
extended and there is no evidence put forward to support this position at all, additionally no formal
notice was given to player as the correspondence was never directly sent to him but to his
representatives.
40. The player mentions that his representative responded to the letter of 15 July 2020 and “that it is
obvious from his response that no agreement had been reached to extend the contract as he requested
the financial details of the proposal.” According to the player, unless the club “agreed to increase the
remuneration to the Player, to a level to match his performance and importance to the team, there
would be no desire for him to agree to the extension of the term until 2022. In any event any
communications should have been sent directly to the Player.”
41. He further made reference to the club’s claim which implied that following their initial letter, it
proposed a 4-year contract and referred to WhatsApp correspondence with his representative, but
in this regard the he indicated that the WhatsApp exchange occurred nearly two months later on
14 September 2020 however the said correspondence is merely an indication of the option to
extend the contract – “No deal was agreed to between the player and the club despite there being
further discussions in September and November 2020.”
42. Furthermore, the player indicated that “prior to the start of the January Transfer window in 2021, at
the end of December 2020, the Club began to treat the Player differently. It is averred that this is the
case because the Club knew the Player only had six months left on his Contract and he was not agreeing
to extend it. Therefore (in the event no extension could be agreed) the Club wanted to force him to be
sold in January 2021” – however a deal could not be agreed to, to either sell him or extend his contract
with the Club the the January 2021 transfer window
43. Between the period February to July 2021, there was further communication between the club and
the representative of the player to extend the contract, but the terms were not good enough hence
the player did not agree to such an extension “as a result the club began treating him badly and
differently to the other players:
-
he was criticised in the media by the Coach;
-
he was dropped from the starting line-up of the first team;
Page 7
REF FPSD-4347
-
he was forced to do additional running with the substitutes and players that did not play, even though
he had played35;
-
he was forced to train with the reserve/under 21 team, including being made to train without a ball and
to only do running36.”
44. The player indicated that the final match of the season was on 9 May 2021 and prior to leaving
Ukraine, the legal representative of the club confirmed orally that he did not need to return to
train as he was not staying for the 2021-2022 season, “hence he did not fail to return as he was not
extending his contract for the 2021/2022 season, there was little point in him returning to Ukraine.”
45. Moreover, the player indicated that the club failed to pay his salary for the months of June and July,
in this regard his legal representative contacted the club indicating that he would full forfeit the
salary.
46. On 25 August 2021, the player and Altach concluded an employment contract, in this regard Altach
indicated that when making the ITC request, the former contract termination was that the “contract
with the former club has expired”. The fact that the ITC was issued stating that the de-registration
date was 31 July 2021 demonstrates that:
-
the Contract was not extended in July 2020 or June 2021 as alleged;
-
no extension of the Contract had been communicated to the UAF;
-
the UAF were not aware of any dispute between the Player and the Claimant;
-
the UAF considered that the Player’s contract expired on 31 July 2021;
-
in direct contradiction to the Claimant’s assertions in its letter to the Second
-
Respondent dated 28 August 2021 and at paragraph 43 of the Statement of Claim,
-
the Player could not have been registered to play in the UPL for the season 2021/2022.
c.
Counterclaim
47. The player mentioned that it is his position that the contract was not extended at all and expired
on 31 July 2021. “However, if the Tribunal decides that the Contract was extended, the player offers the
alternative position that the Contract was terminated with just cause pursuant to Article 14.2 RTSP
(“abusive conduct of party aiming at forcing the counterparty to terminate or change the terms of the
contract shall entitle the counterparty (a player or a club) to terminate the contract with just cause”) and
Article 14bis RTSP (terminating a contract with just cause for outstanding salaries).”
48. According to player, “the Club failed to pay at least two monthly salaries on their due dates, he is
therefore deemed to have a just cause to terminate his contract, further the email of 3 July 2021 put the
Claimant in default in writing and the debtor Claimant failed to comply with its financial obligation(s).”
49. In conclusion the Player and Altach sought the following relief:
-
that Claimant’s claim be dismissed; and
-
the Claimant is to pay costs, to the extent they can be ordered or other relief as the Tribunal see fit.
Page 8
REF FPSD-4347
Alternatively, in the event the Tribunal finds that the contract was extended, then player seeks the
following by way of its Counterclaim:
-
an order that the club pays him USD 13,322.58 as compensation just and appropriate, by way of
damages for the club's various breaches of contract; interest on the sums payable at 5% or such other
appropriate rate;
-
the club is to pay costs, to the extent they can be ordered; and such further or other relief as the Tribunal
sees fit
d.
Club reply to Counterclaim
50. In reply to the Counterclaim, the club mentioned the following regarding:
(a) Alleged abusive conduct
-
The extension of the Contact under Clause 1.4 of the Contract for an additional year was not needed,
since the player’s consent had been already provided when the contract was originally signed.
-
Second, all negotiations were conducted primarily with the representatives of the First Respondent. No
objections as to authority of such representatives to act on behalf of the player has ever been raised.
-
These allegations of an “abusive” conduct are almost entirely based on words of the Player himself and
are not corroborated with any contemporary evidence whatsoever.
-
In the present case, the Player has never raised any formal complaints and has never filed any warnings
to FC Vorskla in relation to its alleged abusive conduct towards the Player.
-
Therefore, considering all the above, the Player was not entitled to terminate the Contract based on
Article 14.2 of RTSP.
(b) Alleged non-payments of salary for June and July 2021
-
First of all, the Claimant draws attention of the Tribunal that the First Respondent cannot provide a
specific date when the Player allegedly terminated the Contract. It is of no surprise. Since 09 June 2021,
the First Respondent abrupted communication with the Club in a flagrant breach of the Contract16 and
has never returned to Ukraine by all means having to perform his obligations irrespective of the Club's
position on prolongation of the Contract. This is itself a serious breach of the Contract.
-
Now the First Respondent attempts to build its case on allegedly receiving payments for June – July 2021
with certain delay, while the Player was in breach of the Contract failing to appear for preparation for
the season 2022/2023.
-
Club accrued certain delay in payment of the salary for June and July 2021 and bonuses for August 2021
due to the Player's own action, namely because the Player unjustifiably abrupted communication with
the Club and failed to appear to the team in June 2021.
-
A major part of the Player's salary was paid in cash (see para 116 of the Counterclaim). The Player duly
received his salary payments in cash. In June and July 2021, the Player failed to appear in the Club, thus
he could not receive the payment in cash. Therefore, the Club had to adjust the existing procedures and
transfer the funds to the Player’s bank account.
Page 9
REF FPSD-4347
-
As confirmed by the Player, the total amount of the salary payments transferred to his account
amounted to USD 5,200, which corresponds to the amount of two-month salary of the Player and
indicates that all outstanding payments were accomplished within the short period of time.
51. In conclusion the club reiterated its relief sought as per its claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
52. 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 19 November 2021 and submitted for decision on 15
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.
53. 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 (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 a Ukrainian club, a French player and an Austrian club.
54. 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 (July 2022 edition), and considering that the
present claim was lodged on 19 November 2021, the August 2021 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
55. 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.
Merits of the dispute
56. 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
Page 10
REF FPSD-4347
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
57. The foregoing having been established; the Chamber moved to the substance of the matter.
58. First of all, the Chamber first noted that the club and player, signed an employment contract
initially valid as from 30 August 2019 until 31 July 2021.
59. In relation to this period of validity, the Chamber then took note of the fact that the parties strongly
dispute whether the extension option defined in clause 1.4 of the contract concluded between the
player and the club would apply and that the contract therefore be extended for a further period.
60. In this context, the Chamber acknowledged that its task was to determine whether or not the
parties were still bound by an employment agreement.
61. First of all, the Chamber started analysing the content of clause 1.4. and 1.5 of the contract, which
stipulates:
“1.4. The term of the Contract may be extended for 1 (one) year, if the Club 30 (thirty) days before the
end of the term of the Contract (paragraph 1 of the clause) has notified the Professional Football Player
that it is intends to extend to the term until 31.07.2022."
1.5. The Contract can be extended or signed for new period if the Parties agree to it”
62. After duly observing the contents of said clauses, the Chamber furthermore pointed out that the
wording of clause 1.4. appears to be potestative in its nature, however it is clear that in accordance
with the aforesaid provisions two requirements shall be met in order to extend the contract. The
first one was to notify the player of its intention to extend, which undisputedly was fulfilled, and
the second one was that the contract could only be extended or signed for a new period if the
parties agree to it.
63. On analysis of the documentation and information on file the Chamber remarked that it seems
that the parties were still attempting to negotiate the terms of the extension of the contract and
that no final agreement was reached between the player and the club in relation to the extension
of the contract, additionally taking into account the wording of clause 1.5. of the contract which
indicates that the contract will only be extended if the parties agree to it – the Chamber
emphasised that it is evident that no agreement was reached.
64. As a result, the Chamber concluded that the unilateral extension clause as agreed upon in clause
1.4 of the contract, does not apply. Consequently, the contract expired naturally on 31 July 2021
hence he was not bound to an employment agreement with the club and that in the period
thereafter, he was free to sign with another club.
Page 11
REF FPSD-4347
65. The Chamber at this point, rejected the claim of the club and considered the counterclaim of the
player.
66. Additionally on the basis that the contract was not extended and that the player was not bound by
an employment agreement, the Chamber established that the counterclaim of the player is
rejected.
d. Costs
67. 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.
68. 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.
Page 12
REF FPSD-4347
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/ Counter-Respondent, FC Vorskla, is rejected.
2.
The counterclaim of the Respondent/ Counter-Claimant, Pape-Alioune Ndiaye, is rejected.
3.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 13
REF FPSD-4347
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
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
Page 14