Labour Disputes
Texto da decisão
REF. FPSD-6893
Decision of the
Dispute Resolution Chamber
passed on 30 March 2023
regarding an employment-related dispute concerning the player Cher Ndour
BY:
Frans de Weger (the Netherlands), Chairperson
Johan van Gaalen (South Africa), member
Dana Al-Noaimi (Qatar), member
CLAIMANT:
Club Atalanta B.C. SPA, Italy
Represented by Studio Legale Morelli
RESPONDENT 1:
Player Cher Ndour, Italy
Represented by Tiago Rodrigues Bastos, José Ricardo Gonçalves,
David Valente Bastos, Mabílio A. Albuquerque
RESPONDENT 2:
SL Benfica, Portugal
Represented by Libra Law SA
pg. 2
REF. FPSD-6893
I. Facts of the case
1.
On an unspecified date (2015), the Italian club, Atalanta B.C. SPA (hereinafter the Claimant
or Atalanta) and the Italian player, Mr Cher Ndour (d.o.b. 27 July 2004) (hereinafter the
Respondent 1 or the player) concluded an agreement (hereinafter the Agreement). The
Agreement was signed by the player’s parents due to the young age of the player.
2.
The player was in the academy of Atalanta as of the 2015/2016 season until 2019/2020
season.
3.
In accordance with art. 2 of the Agreement, Atalanta undertook to “offer the following
services to the Young Player:
a) competitive activities of the "youth academy": (…)
b) contribution and coordination to the development of the personality: (…)
c) physical development: (…)”
4.
The same provision contained the following:
“2.7 The costs and expenses relating to the provision of the Services and Additional Services
shall be borne exclusively by the Club.
2.8 Atalanta BC guarantees the amount of € 6.000,00 per annum payable monthly, or
quarterly, to the Young Player as a contribution-scholarship, aimed at scholastic support
and balanced educational training.
2.9 Atalanta BC guarantees the amount of € 10.000,00 to the Young Player as a scholarship
contribution, upon federal registration with the status of "Giovane di Serie", aimed at
scholastic support and balanced educational training.
3.0 Atalanta BC will undertake to offer an employment contract upon the player's 16th birthday.”
5.
The duration of the Agreement was stipulated in its art. 7 as follows:
“This agreement lasts until the eventual stipulation of the first employment contract
between the Club and the Young Player.
However, it is understood that the Club has the right to withdraw from this contract at any
time, if:
(a) the Young Player, at the sole discretion of the Club, does not possess the technical,
physical, footballing and scholastic commitment and behavioral skills required for his
completed training as a professional player;
(b) the Young Player has violated the Atalanta Regulations and/or, for those who have
requested the CDG service, has violated the CDG Regulations and such violation, in the sole
discretion of the Club, is incompatible with the continuation of this contract.
pg. 3
REF. FPSD-6893
The Parents, if the Young Player is a minor, or the Young Player, if he/she has reached the
age of majority, may validly withdraw from the present agreement when the Young Player,
in the legitimate exercise of the faculties attributed to him/her by the current F.I.G.C.
regulations, registers with a party other than the Club.
In all the aforementioned hypotheses, the withdrawing party must communicate the
withdrawal, by return receipt, with 15 days' notice. Within and no later than the
aforementioned term, the Parents, if the Young Player is a minor, or the Young Player, if he
benefits from the logistical service referred to in Article 3, must arrange for the transfer of
him and his belongings to his place of residence.”
6.
On 23 and 29 July 2020, “in close proximity of the 16th birthday of the player”, Atalanta sent
the following letter to the player and his parents, offering an employment contract under
the following conditions:
−
−
−
“season 2020/2021: euro 48.000,00 (fourty eight thousand /00) gross
season 2021/2022: euro 58.000,00 (fifty eight thousand /00) gross
season 2022/2023: euro 68.000,00 (sixty eight thousand /00) gross.
−
Conditional remuneration for each sport season: up to a maximum of euro 18.000,00
(eighteen thousand /00) gross according to individual and team objectives to be
determined)”
7.
In said correspondence, a few dates were proposed by Atalanta “to formalize the sports
employment contract”.
8.
On 31 July 2020, the official website of the Portuguese club, SL Benfica (hereinafter the
Respondent 2 or Benfica) announced the player was signed by Benfica.
9.
On 31 July 2020, Atalanta sent the following letter to the player:
“Dear Sirs,
we follow up on our previous communications dated 23, 24, 29 July 2020, which did not
receive any reply, in which we have represented to you our intention to enter into a sports
employment contract pursuant to Article 4 of Law 91 of 1981 with the player Cher Ndour
("Player") and we have convened you in order to submit to you a contractual proposal.
We acknowledged from univocal press sources that, prior to the Player's 16th birthday, you
held negotiations with SL Benfica in order to enter into a professional sports contract.
Such behavior, if leading to the conclusion of a sports performance contract with SL Benfica,
would entail a serious violation of Atalanta's rights to sign the first sports employment
contract with the Player pursuant to Article 33 of the NOIF.
We have also acknowledged that, still before to the Player's 16th birthday, you made use of
the services of the sports agents company Positionumber, therefore committing a further
serious breach of the sporting regulations.
pg. 4
REF. FPSD-6893
The above being stated, Atalanta, without prejudice to all previous communications, formally
warns you not to carry out any further activity aimed at signing a professional sports
performance contract with a club other than Atalanta, specifying as of now that, in such case,
it will proceed before any competent court for the compensation of the damages.
We await for urgent feedback in order to organize a meeting for formalizing, as per previous
invitations that remained unanswered, the first sports employment contract with the “giovane
di serie” Cher Ndour.
With express reserve of all rights and actions.”
10. On 2 October 2020, the Italian Football Federation (hereinafter the FIGC) sent the following
correspondence to Atalanta:
“OBJECT: Request for approval of international transfer of the minor player Cher
NDOUR, born on 27.07.2004
Esteemed Club,
the Portuguese Association, on behalf of the club Sport Lisboa e Benfica – Futebol, SAD has
requested on 30.09.2020 the FIGC approval for the purposes of requesting the authorization
to the FIFA Sub-committee for the international transfer of the abovecaptioned player.
We specify that the approval might be denied only upon valid reasons which shall be proved
to the purposes of the evaluation by the competent bodies.
Outside the abovementioned cases or in case of no reply to this communication within
06.10.2020 FIGC will release the authorization.”
11. On 8 October 2020, the FIFA Players' Status Sub-Committee judge entered the decision
confirming the transfer of the minor player to the Portuguese Football Federation
(hereinafter the FPF). The reason of transfer of the minor: “The player is over 16 and is moving
within the territory of the EU/EEA or between two associations within the same country”.
12. On 9 October 2020, the FIGC delivered the International Transfer Certificate (ITC) of the
player to the FPF.
13. On 22 January 2021, Atalanta sent a letter to the FIFA Disciplinary Committee as well as to
the Respondents, complaining about the behaviour of the latter.
II. Proceedings before FIFA
14. On 29 July 2022, the Claimant filed the claim at hand before FIFA.
15. On 16 December 2022, after the closure of the submission phase of the present matter,
Atalanta submitted unsolicited correspondence. In line with art. 23 par. 1 of the Procedural
Rules Governing the Football Tribunal (hereinafter the Procedural Rules), according to which
“After such notification, the parties may not supplement or amend their submissions or requests
pg. 5
REF. FPSD-6893
for relief or produce new evidence.” Consequently, correspondence submitted after the
closure of the submission phase was not considered.
16. A brief summary of the admissible positions of the parties is detailed in continuation.
a. Position of the Claimant
17. The requests for relief of the Claimant were the following:
“- Ascertain and declare that the Player terminated without just cause the professional
agreement entered into with Atalanta;
- Ascertain and declare that Benfica induced the Player to terminate without just cause
the professional agreement entered into with Atalanta;
- Ascertain and declare that Atalanta is entitled to be compensated for the termination
without just cause and, as a result thereof order the Player and Benfica, jointly and
severally, to pay to Atalanta the sum of € 30.338.000,00, or the different sum to be
ascertained as result of this procedure, plus accrued default interest from 1st August 2020
until the effective day of payment;
- Ascertain and declare that the termination of the professional agreement by the Player
occurred within the protected period and, as a result thereof sanction:
➢ the Player with a restriction on playing in official matches for the period of six months
or for the different period that the FIFA DRC shall consider appropriate;
➢ Benfica with a ban from registering any new players, either nationally or
internationally, for two entire and consecutive registration periods;
- order Benfica to submit the professional contract entered into with the Player;
- order the Player and Benfica to pay all the legal costs, levies and expenses anyhow
related to this procedure, also taking into account their non-cooperative behavior and
violation of the duties of fairness and good faith;
- impose a registration ban on Benfica in case of failure to pay the relevant amount in due
time.”
18. Atalanta firstly explained that the player is a professional in line with art. 2 of the
Regulations as he has a written Agreement as well a regular salary of EUR 500/month.
19. Atalanta further argued that it duly fulfilled its obligations under the Agreement that it duly
exercised its right under art. 2 of the Agreement, i.e. “3.0 Atalanta BC will undertake to offer
an employment contract upon the player's 16th birthday.”
20. In this respect, Atalanta was of the opinion that it had a “preferential treatment” concerning
the player and that such treatment is economically prudent considering that it is “to the
clear and only benefit of the Player” and are in light of the Italian law.
pg. 6
REF. FPSD-6893
21. Based on the above, Atalanta was of the opinion that the player benefited since the “right
to offer (according to Italian law) into an obligation to offer, thereby ensuring to the Player that
he would have been able to enter into an employment agreement.”
22. Atalanta consequently argued that it duly offered the employment contract to the player,
when the latter “suddenly disappeared”, i.e. while the Agreement “was still on full force and
binding between Atalanta and the Player”.
23. In this respect, Atalanta asserted that Benfica induced the player to breach the Agreement
(cf. art. 13 of the Regulations), equally breaching art. 18 of the Regulations.
24. Atalanta deemed that “the negotiations of the Player, both with Benfica and the agency, were
undertaken well before his 16th birthday and therefore in open breach of the FIFA Regulations.”
25. Based on the above, Atalanta claimed that it should be entitled to compensation for the
breach of contract by the player without just cause based on art. 17 of the Regulations and
that Benfica shall be jointly and severely liable.
26. Atalanta asserted that the calculation shall be based on the “positive interest” theory as
calculated the following damage heads:
- EUR 228,000 as the amount of the contract between Atalanta and the player
foreseen in the correspondence of 23 and 29 July 2020;
- Estimated “new remuneration” between the player and Benfica amounting to no
less than EUR 400,000;
Average of the two amounting to EUR 314,000
- Estimated transfer value of the player amounting to EUR 30,000,000 (based on
average of transfer fees of “similar players trained by Atalanta”)
- Increase of the compensation for the breach during the protected period (six
monthly salaries) amounting to EUR 24,000
- TOTAL COMPENSATION: EUR 30,338,000.00
b. Position of the Respondent 1
27. In his reply, the player submitted the following request for relief:
“(i) The claim of Atalanta Bergamasca Calcio S.P.A is dismissed.
(ii) Atalanta Bergamasca Calcio S.P.A shall bear any and all costs relating to the present
proceedings.”
28. At first, the player argued that the provisions of the Italian law shall not apply in the matter,
in particular as “this would mean that the player, regardless of his status as an adult or a minor,
would always be obliged to enter an employment contract with Atalanta, even if unwilling,
depending only on the unilateral will of the club.”
pg. 7
REF. FPSD-6893
29. Secondly, the player insisted that the Agreement is not an employment contract of a
professional player, but rather a “training contract”, which does not indicate a date of
conclusion not the duration and, consequently, could not even form a valid employment
contract.
30. The player added that, even if he would have been a professional within the meaning of
the Regulations, the status “is not a sufficient condition for qualifying the contract between the
Player and the Claimant as an employment agreement.”
31. The player was of the opinion that the behaviour of Atalanta “constitutes a situation of venire
contra factum proprium as well as an abuse of right and offends the principle of good faith” as
the latter is suddenly alleging that the player was a professional even though he was
treated as an amateur.
32. As to the offer of 23 and 29 July 2020, the player argued that there is no provision in the
Agreement “that obliges the Player to accept such offer, or any provision that gives the right to
the Claimant to execute an employment contract without the Player’s consent.”
33. The player further asserted that he was free at the end of the season 2019/2020, i.e. which
is strengthen by the fact that Atalanta did not instruct the FIGC to reject the ITC within the
specified deadline.
34. In view of the above, the player argued that there “was no termination of any kind of contract,
as the only situation that occurred was the non-acceptance of an employment contract
proposed by the Club, an offer that the Player chose not to accept as he had the right to.”
35. The player finally adder that “even if it were considered that there is a termination of a
professional contract without just cause, the amounts requested by Atalanta are completely
discretionary and unreasonable, without correctly taking into account the reality of the facts by
mobilizing examples that in little or nothing are related to the Player’s case.”
36. Regarding any alleged “third party influence”, the player asserted that he only signed a
representation agreement on 31 July 2020, i.e. when he was 16 years old.
c. Position of the Respondent 2
37. In its reply, Benfica submitted the following request for relief:
“I. The claim of Atalanta Bergamasca Calcio S.P.A is dismissed.
II. Atalanta Bergamasca Calcio S.P.A shall bear any and all costs relating to the present
proceedings.”
38. Equally as the player, Benfica firstly argued that the provisions of the Italian law shall not
apply in the matter as the FIFA Regulations shall be exclusively applicable.
pg. 8
REF. FPSD-6893
39. As to the status of the player, Benfica pointed to the features of Clauses 2, 3 and 7 of the
Agreement as well as pointed to the players’ passport issued by the FIGC, in accordance
with which the player was registered with Atalanta as “young amateur” and “amateur”.
40. Benfica argued that “the Agreement is not an employment contract”. in particular due to the
following features of the Agreement:
−
−
−
−
−
−
“The parties contemplate the signature of an employment contract only in some future
circumstances.
The parties have explicitly agreed that the Agreement would only last until the possible
signature of such an employment contract.
Thereby, they make a clear distinction between the Agreement and the future
employment contract.
The amount paid by Atalanta to the Player, provided at clauses 2.8 and 2.9, do not
relate to the Player’s footballing activity but only to his school and academic
education. The player does not assume any obligation or duty towards Atalanta,
neither regarding the footballing activity nor with regard to any other activity.
There is an imbalance or inequality between Atalanta’s entitlement to terminate a
contract at its sole discretion, whereas the Player can terminate the contract only if
he is registered with another club.
At any rate, whether it is an employment contract or not, it must be emphasised that
both parties are allowed to terminate the contract giving only a notice of 15
days to the other.”
41. Benfica further asserted that the Agreement does not include essentialia negotii, i.e.
− “The Agreement does not impose on the Player any duty regarding the footballing
activities. Neither does it define the role of the player with regard to such footballing
activities.”
− “The Player is not entitled to any employment remuneration.”
− “The Agreement does not provide for any duration.”
− “The Agreement does not bear any date and is potentially void.”
42. Furthermore, Benfica argued that no actual employment contract was ever concluded as
be the offer provided in Clause 2 of the Agreement.
43. In view of the above, Benfica was of the opinion that since the player “cannot be qualified
as a professional and the termination of the Agreement is not subject to article 17 RSTP.”
44. In any event, Benfica argued that even if the DRC would qualify the Agreement as an
employment contract, the latter provides “the possibility for each party to terminate it,
with a 15- day prior notice, in some circumstances, such as the Player’s registration with another
club, literally “with a party other than the Club” (clause 7).”
pg. 9
REF. FPSD-6893
45. Taking into account “more than 2 months elapsed between the moment Atalanta was made
aware of the Player’s intention to terminate the Agreement and the moment Benfica registered
him through the FIGC and the Portuguese Football Association. Therefore, Atalanta received
such information with a notice much longer than the contractually agreed 15-days.”
46. Furthermore, Benfica pointed out to provision art. 18 par. 2 of the Regulations concerning
the maximum duration of employment contract for minor players and argued that the
Agreement can “be considered as having been signed for the minimum duration of one year
since 2015 and implicitly extended by one more year in 2016, 2017, 2018, etc. until the end of
the season 2020. At such time, there was clearly no implicit extension, since the Player decided
to join Benfica. Accordingly, in July 2020, the Agreement expired and was not renewed. The
Player was free to leave Atalanta and to sign a new agreement with Benfica.”
47. Benfica finally reiterated that Atalanta’s claim is unfounded and shall be dismissed
because: (i) the Agreement is not an employment contract and the Player is not a
professional and (ii) even if the Agreement is an employment contract, the player did not
commit any breach.
48. In case that any compensation shall be granted, Benfica asserted that “Atalanta’s
assessment of the Player’s transfer value is groundless and shall be fully disregarded. The
Claimant fails to prove any possible damage resulting from the purported breach of the
Agreement.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
49. 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 29 July 2022 and submitted for
decision on 30 March 2023. Taking into account the wording of art. 34 of the October 2022
edition of the Procedural Rules, the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
50. 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. a) 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 a
dispute in relation to the maintenance of the contractual stability where there has been an
ITC request and a claim from an interested party in relation to said ITC request.
51. In this respect, the Chamber established that the matter at hand originated by the ITC
request as the claimed damages are clearly linked to “lost opportunities” by Atalanta due
pg. 10
REF. FPSD-6893
to the player’s signing of the contract with Benfica. The members of the Chamber were of
the opinion that this is further supported by the timeline of the case.
52. 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 15 February 2023, 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
53. 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
54. 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 above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
55. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that Atalanta and the Respondents strongly dispute
whether the player was a professional or an amateur during his registration Atalanta, and
the consequences therefrom.
56. In this context, the Chamber firstly recalled the wording of art. 2 par. 2 of the Regulations,
which clearly determines that there are two mandatory conditions for a player to be
considered as a professional: (a) having a written contract with the club concerned and
(b) being paid more for his footballing activity than the expenses he effectively incurs.
57. The DRC underlined that the above-mentioned conditions must be fulfilled cumulatively
and that it is the Claimant who carries the burden of proof to demonstrate the professional
status of the player.
pg. 11
REF. FPSD-6893
58. In this respect, the members of the DRC recalled that Atalanta argued that the player has
a written contract and that by receiving EUR 500/month, he is being paid for his footballing
activity more than the expenses effectively incurred.
59. Nonetheless, in line with the argumentation of the Respondents, the Chamber observed
that the Agreement does not contain the essentialia negotii, in particular its duration nor
commencing date are stipulated in said document.
60. Additionally, the Chamber highlighted that the letters sent by Atalanta to the player on
23 and 29 July 2020 are compelling evidence to the fact that no professional contract had
been executed with the player, as Atalanta itself admits that the player would be offered
an employment contract. Evidently, had the player been already a professional with
Atalanta, the club would have never offered him his first contract.
61. For the sake of completeness, the Chamber consulted the player’s passport from the FIGC
and concluded that the said document equally confirmed that the player was never
registered with Atalanta as a professional.
62. In view of the above, since the Claimant had not been able to prove that an employment
contract had validly been concluded between itself and the player, the Chamber concluded
that there is no possibility to enter into the question whether or not such alleged
employment contract had been breached and rejected the claim of Atalanta in its entirety.
d. Costs
63. 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.
64. 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.
65. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 12
REF. FPSD-6893
IV. Decision of the Dispute Resolution Chamber
1. The Football Tribunal has jurisdiction to hear the claim of the claimant, Atalanta B.C. SPA.
2. The claim of the Claimant is rejected.
3. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 13
REF. FPSD-6893
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. 14