Labour Disputes
Texto da decisão
REF FPSD-13395
Decision of the
Dispute Resolution Chamber
passed on 13 June 2024
regarding an employment-related dispute concerning the player
Aboubacar Roy Ndoutoumou Kone
BY:
Clifford J. HENDEL (France & USA), Deputy Chairperson
Angela COLLINS (Australia), member
Laurel VAURASI (Fiji), member
CLAIMANT:
FC Universitario, Bolivia
Represented by Juan Manuel Cabrera
RESPONDENT 1:
Aboubacar Roy Ndoutoumou Kone, Gabon
Represented by Fahmi Belhadj Mohamed
RESPONDENT 2:
Al Zawraa Sports Club, Iraq
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I. Facts of the case
1.
On 14 January 2022, the Bolivian club, FC Universitario, (hereinafter: the Claimant or Club),
and the Gabonese player Aboubacar Roy Ndoutoumou Kone (hereinafter: the First
Respondent or Player) signed an employment agreement (hereinafter: the Employment
Agreement) valid as of the date of signature until 31 December 2023.
2.
In accordance with the Employment Agreement, the Claimant and First Respondent
stipulated the terms concerning the early termination of the Employment Agreement by
either party:
“SÉPTIMA: RESOLUCIÓN ANTICIPADA DE CONTRATO.- En caso de resolución anticipada
del plazo de vigencia del presente contrato por cualquiera de LAS PARTES, ésta deberá
abonar a la otra como indemnización por ruptura que causa perjuicios, la suma de
250,000.- (DOSCIENTOS CINCUENTA MIL 00/100 DÓLARES) a ser cancelados en forma
inmediata, sin necesidad de requerimiento judicial o extrajudicial.
Freely translated into English:
“SEVENTH: EARLY TERMINATION OF THE CONTRACT.- In case of termination before the
present contract’s end date by any of THE PARTIES, that party shall pay the other party the
sum of 250,000.- (TWO HUNDRED AND FIFTY THOUSAND 00/100 DOLLARS) for the
contractual termination causing damages, payable immediately without the need for
judicial or other notice.”
3.
Also on 14 January 2022, the Claimant and the Player signed as Annex A to the Employment
Agreement an Addendum (hereinafter: the Addendum) whereby they defined further
elements of their employment relationship. The Seventeenth Clause of the Addendum
stipulated terms in the event the Player wished to terminate the Employment Agreement
and join another club:
“DECIMA SEPTIMA (RESOLUTORIA): En caso de que otro club, organización nacional o
internacional, el propio jugador y/o su representante, gestionara los servicios de EL
JUGADOR antes del vencimiento del presente contrato, EL JUGADOR deberá cancelar para
obtener su libertad de acción al Club ‘F.C. UNIVERSITARIO’ un monto de indemnización
libremente fijado entre partes de $us. 250.000.- (Doscientos cincuenta mil 00/100 Dólares
americanos)”
Freely translated into English:
“SEVENTEENTH (TERMINATION): In the event another club or national or international
organization, the Player himself and/or his representative, promotes the Player’s services
before the expiry of this agreement, and in order to be free from contract, THE PLAYER
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shall compensate the club “F.C. UNIVERSITARIO” with the freely agreed-upon amount of
$us 250.000.- (Two hundred and fifty thousand 00/100 United States Dollars).”
4.
On 2 July 2023, the Claimant and the Player signed a Termination Agreement (hereinafter:
the Termination Agreement) whereby they mutually agreed to put an end to their
employment relationship. The Fourth Clause of the Termination Agreement stipulated that
the Player was obligated to compensate the Claimant in the amount of USD 50,000 on or
before 30 August 2023, failing which the Player would be obligated to satisfy the entire
amount foreseen in Seventeenth Clause of the Addendum (i.e., USD 250,000):
“CUARTA.-(ACUERDO ECONÓMICO)
El jugador tendrá que pagar al club por indemnización por ruptura anticipada del
contrato con la suma de $US 50 000 (CINCUENTA MIL DÓLARES AMERICANOS), donde EL
JUGADOR tendrá plazo hasta el 30 de agosto del 2023 para la cancelación
En caso de incumplimiento del pago hasta la fecha, el jugador cancelará la rescisión total
del ANEXO A DE CONTRATO DE TRABAJO DE FUTBOLISTAS cláusula DECIMA SEPTIMA y club
recurrirá a demanda a los tribunales competentes de la F I F A, por incumplimiento.”
Freely translated into English:
“FOURTH.- (ECONOMIC AGREEMENT)
The Player shall compensate the club for the early termination of the contract in the
amount of $US 50 000 (FIFTY THOUSAND US DOLLARS), and THE PLAYER shall have a time
limit until 30 August 2023 to make payment
In case of nonpayment by the due date, the player shall pay the entire termination amount
foreseen in Clause SEVENTEEN ANNEX A TO THE FOOTBALL PLAYER EMPLOYMENT
CONTRACT and the club shall seek recourse before the competent tribunals at FIFA for
breach of contract.”
5.
Also on 2 July 2023, the Claimant and the Player signed a Debt Acknowledgement
(hereinafter: the Debt Acknowledgement) which included a provision that the Player must
compensate the Claimant for the early termination of the Employment Agreement in the
amount of USD 50,000 net on or before 30 August 2023, failing which the Player would
have to pay the Claimant the amount of USD 250,000 net, in accordance with the Seventh
Clause of the Employment Agreement and the Seventeenth Clause of the Addendum.
“SEGUNDA (ANTECEDENTES): Las partes declaran:
• Haber suscrito un contrato FEDERATIVO y ANEXO A en fecha 14 de enero del 2022 al 31
de diciembre del 2023 donde se hizo conocer a la Federación Boliviana de Fútbol.
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En fecha 02 de julio del 2023 ambas partes pactan el presente documento de valor legal
llegando a un mutuo acuerdo entre el JUGADOR y el CLUB con el siguiente término
• EL JUGADOR debe pagar al club F.C. UNIVERSITARIO por indemnización de ruptura
anticipada a mutuo acuerdo entre ambas partes al contrato con la suma de $US 50.000
(CINCUENTA MIL DÓLARES AMERICANOS) libre de impuestos que será cancelada hasta
el 30 de agosto del 2023.
TERCERA (INCUMPLIMIENTO DE PAGO):
• En incumplimiento al documento el JUGADOR deberá abonar la rescisión completa de
contrato anexo A de contrato deportivo de trabajo cláusula decima séptima, y contrato
deportivo de trabajo de futbolistas profesionales (contrato federativo) cláusula
SÉPTIMA, teniendo que cancelar el monto de $US 250 000 (DOSCIENTOS CINCUENTA
MIL DOLARES AMERICANOS), libre de impuestos
• EL CLUB podrá demandar AL JUGADOR en las instancias tribunales correspondientes
de la F B F., F I F A”
Freely translated into English:
“SECOND (BACKGROUND): The parties declare:
• Having signed a FEDERATION contract and ANNEX A on 14 January 2022 through 31
December 2023, where it was made known to the Bolivian Football Federation.
On 2 July 2023, both parties agreed to this document of legal value, reaching a mutual
agreement between the PLAYER and the CLUB with the following term
• THE PLAYER must pay the club F.C. UNIVERSITARIO as compensation for early
termination of the contract via mutual agreement between both parties the sum of $US
50,000 (FIFTY THOUSAND UNITED STATES DOLLARS) net that must be paid on or before
30 August 2023.
THIRD (FAILURE TO PAY):
• In case of non-compliance with the document, the PLAYER must pay the complete
termination of the contract, Annex A, of the sports employment contract, clause
seventeenth, and sports employment contract for professional soccer players
(federation contract), clause SEVENTH, having to pay the amount of $US 250,000. (TWO
HUNDRED AND FIFTY THOUSAND US DOLLARS), tax free
• THE CLUB may sue THE PLAYER in the corresponding court instances of the F B F., F I F
A”
6.
By correspondence dated 15 August 2023, the Claimant reminded the First Respondent of
his obligation to satisfy the amount of USD 50,000 on or before 30 August 2023, failing
which the Claimant would request the entire amount of the termination clause in the
Employment Agreement.
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7.
On 8 September 2023, the club Al Zawraa Sports Club from Iraq (hereinafter: the Second
Respondent or Al Zawraa) entered a transfer instruction via the FIFA Transfer Matching
System (TMS) to engage the Player permanently as an out of contract player. Upon the Iraq
Football Association’s request, the Bolivian Football Federation released the Player’s
International Transfer Certificate (ITC) and the Player was registered with the Iraq Football
Association on 10 September 2023.
8.
On 9 September 2023, the Claimant sent a default notice (hereinafter: the First Default
Notice), granting the Player a time limit until 11 September 2023 to remedy the default and
comply with the payment of USD 50,000 or it would undertake the appropriate legal
measures before the competent sporting bodies and claim the full USD 250,000 foreseen
in the Third Clause of the Debt Acknowledgement.
9.
On 14 December 2023, the Claimant sent another default notice (hereinafter: the Second
Default Notice), stating that the Player had consistently failed to comply with the due dates
set forth in the signed documents and, in view of the Player’s breach of the Termination
Agreement and Debt Acknowledgement signed on 2 July 2024, granted him a final deadline
of 10 days to pay the club the amount of USD 250,000 net. The Claimant also pointed out
that if the Player did not comply with the requested payment, it would file the pertinent
legal actions before FIFA against the Player and his new club, Al Zawraa.
II. Proceedings before FIFA
10. On 18 January 2024, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
11. According to the Claimant, the First Respondent has consistently failed to comply with his
contractual obligations, as he did not satisfy the USD 50,000 payment due on or before 30
August 2023, despite having been reminded to do so prior to the deadline.
12. The Claimant highlights that it was because of the First Respondent’s request to terminate
the Employment Agreement that the parties eventually reached the Termination
Agreement whereby they stipulated an amount lower than what was included in the
Seventh Clause of the Employment Agreement and the Seventeenth Clause of the
Addendum. The Claimant acted in good faith and expected the First Respondent to do the
same, as both parties were evidently aware of the consequences for any breach of the
Termination Agreement.
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13. The Claimant points out as a further element of its good faith that it could have demanded
the full USD 250,000 on 1 September 2023, but instead granted the First Respondent a
grace period of 10 days (until 11 September 2023) to comply.
14. The Claimant contends that both formal requirements for the application of art. 12bis are
met vis-à-vis the claim for the USD 250,000, considering that (i) this amount has been due
for more than 30 days and (ii) the Claimant granted a period of 10 days for payment (cf.
Second Default Notice).
15. Finally, the Claimant submits that joint and several liability for the new club is automatic, in
accordance with art. 17 par. 2 FIFA Regulations on the Status and Transfer of Players
(hereinafter: the FIFA RSTP). In this respect, the Claimant cites the jurisprudence of the
Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) concerning joint and
several liability for the new club and concludes that Al Zawraa shall be held jointly and
severally liable for the amount claimed.
16. The Claimant’s request for relief, in relevant part, were the following:
−
Accept the claim and its annexes;
−
Order the First and Second Respondents to pay the amount of USD 250,000 net due
to the breach of the Debt Acknowledgement signed by and between the First
Respondent and the Claimant on 2 July 2024;
−
Order the First and Second Respondents to pay the maximum allowable interest p.a.
over the amount due, calculated as of 1 September 2023;
−
In accordance with art. 12bis of the FIFA RSTP, apply the pertinent sanctions on the
First Respondent;
−
In accordance with art. 24 of the FIFA RSTP, inform the First and Second Respondents
of the consequences of non-payment.
b. Position of the First Respondent
17. Despite being invited to do so, the First Respondent did not file a reply to the claim.
c.
Position of the Second Respondent
18. Despite being invited to do so, the Second Respondent also did not file a reply to the claim.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. First of all, the Chamber 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 18 January
2024 and submitted for decision on 13 June 2024. Taking into account the wording of art.
34 of the March 2023 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.
20. Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 (June 2024), it is competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between an nationality player and a nationality club.
21. Thereafter, 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 (June 2024 edition), and
considering that the present claim was lodged on 18 January 2024, the May 2023 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
22. 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
23. 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.
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i. Main legal discussion and considerations
24. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the Claimant argues the non-payment of certain
financial obligations by the First Respondent as per the Debt Acknowledgement and
requests that the consequences of non-payment foreseen in the Debt Acknowledgement
apply, namely that, pursuant to the Third Clause of the Debt Acknowledgement, the First
Respondent be ordered to pay the amount of USD 250,000 net plus 5% interest p.a., in
addition to holding the Second Respondent joint and severally liable for said payment.
25. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the First Respondent and, if so, whether the latter had a valid justification for not
having complied with its financial obligations. However, prior to entering this analysis, the
Chamber first wished to address the matter of the Second Respondent’s alleged joint and
several liability.
26. In this respect, the Chamber noted that the Claimant’s allegations were premised on art.
17 par. 2 of the Regulations. However, the Chamber reasoned that art. 17 par. 2 of the
Regulations deals exclusively with the consequences of a unilateral termination of an
employment contract without just cause. Art. 17 par. 2 specifically provides for a player’s
new club to be held jointly and severally liable for any compensation a player is ordered to
pay under a scenario where the player has been found to have unilaterally terminated his
contract without just cause.
27. In this case, the Chamber found that the existence of a negotiated instrument whereby the
Claimant and the First Respondent mutually agreed to terminate the employment
relationship (cf. the Termination Agreement) negated any consideration for art. 17 par. 2,
as the matter before the Chamber did not concern a unilateral termination without just
cause. In any event, the agreement upon which the Claimant based its claim – the Debt
Acknowledgement – was not signed by the Second Respondent, makes no mention of the
Second Respondent, and the Second Respondent was not otherwise a party thereto. As
such, the Chamber concluded that the Second Respondent cannot be held joint and
severally liable under art. 17 par. 2 of the Regulations for any amounts awarded to the
Claimant ut infra.
28. Concerning the alleged breach of the Debt Acknowledgement concluded between the
Claimant and First Respondent, the Chamber first noted that in the case at hand the First
Respondent bore the burden of proving that it indeed complied with its financial terms.
29. The Chamber noted that it is undisputed that the First Respondent did not comply with the
terms of the Debt Acknowledgement. Specifically, the Chamber noted that no evidence was
provided, nor was any reasonable justification presented by the First Respondent for not
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having complied with the terms of the Debt Acknowledgement, as the First Respondent did
not file a reply to the claim.
30. In view of the foregoing and bearing in mind the basic legal principle of pacta sunt servanda,
which in essence means that agreements must be respected by the parties in good faith,
the First Respondent has breached his payment obligation under the relevant contract,
namely the Debt Acknowledgement, and must therefore be held liable to compensate the
Claimant for such breach.
ii. Consequences
31. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the First Respondent.
32. In this respect, the Chamber remarked that the Third Clause of the Debt Acknowledgement
and, by the same token, the Fourth Clause of the Termination Agreement, was apparently
designed to stipulate the compensation owed to the Claimant in case of a breach of
contract by the First Respondent, i.e., the party undertaking the payment obligation.
33. Regarding the Claimant’s principal request, the Chamber began by noting that the
Termination Agreement set out the terms for the mutual termination of the employment
relationship between the Claimant and First Respondent. The Termination Agreement
established the Player’s obligation to satisfy payment to the Claimant in the amount of USD
50,000, whereby a failure to pay within the stipulated time limit would result in the Claimant
being entitled to receive a higher sum of USD 250,000, which was in reference to the
amount initially foreseen in the Seventh Clause and the Seventeenth Clause of the
Employment Agreement and Addendum, respectively.
34. The Chamber further noted that the Debt Acknowledgement referred to the mutual
termination of the employment relationship between the Claimant and First Respondent.
As opposed to the Termination Agreement, this document established the Player’s
obligation to satisfy the amount of USD 50,000 “libre de impuestos” (i.e. “net”), with a further
indication that a failure to pay within the stipulated time limit would result in the Claimant
receiving a higher sum of USD 250,000 “libre de impuestos,” again in reference to what was
initially foreseen in the Seventh Clause and the Seventeenth Clause of the Employment
Agreement and Addendum, respectively).
35. Having noted the disparity between the Termination Agreement and the Debt
Acknowledgement as to whether an amount payable to the Claimant would be “libre de
impuestos,” the Chamber referred to the Seventh Clause of the Employment Agreement
and the Seventeenth Clause of the Addendum which, according to each of the said
documents, was the basis upon which the amounts payable to the Claimant were
established. In this respect, the Chamber noted that neither the Seventh Clause of the
Employment Agreement nor the Seventeenth Clause of the Addendum referred to a
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payment being “libre de impuestos.” For this reason, and due to the fact that the payment
obligation arising from the contract termination in question appears to have been born in
the Termination Agreement (which does not refer to “libre de impuestos” either) and not in
the Debt Acknowledgement (the intention of which appears to be to reflect the debt in a
document to be converted into an “instrumento público”), the Chamber finds, by a majority,
that the term “libre de impuestos” should not apply to the Player’s payment obligation.
36. The Chamber then recalled its usual practice when dealing with clauses that determine a
set amount of compensation, payable in the event of a breach of contract, which is that
these clauses must be proportionate.
37. However, after analysing the content of the aforementioned clauses, the Chamber
concluded that the compensation due to the Club under the relevant clauses, i.e., USD
250,000, is excessive and disproportionate, in line with the longstanding jurisprudence of
the Football Tribunal. Specifically, the Chamber underscored that there were only six (6)
months remaining of the Employment Agreement at the time of signature of the
Termination Agreement and Debt Acknowledgement, representing a residual value of
approximately USD 10,200, and that the amount claimed also represented roughly 140
times the Player’s monthly salary under the Employment Agreement (i.e., USD 1,700).
Furthermore, the Chamber highlighted that the amount claimed represented five (5) times
the amount initially stipulated in the Termination Agreement and Debt Acknowledgement
as consideration for the early termination of the Employment Agreement and Addendum.
38. The Chamber also pondered why the Player would sign a Termination Agreement whereby
he undertook the obligation to pay the Club USD 50,000 when he had only six (6) months
left on his Contract and the residual value of that Contract was notably inferior to the
amount stipulated in the Termination Agreement and Debt Acknowledgement.
39. Consequently, the Chamber, relying upon its long-standing practice in this regard and with
due consideration for the circumstances of the case at hand, decided that the
compensation for breach of contract due to the Claimant by the First Respondent shall be
reduced to USD 50,000.
40. Lastly, taking into consideration the Claimant’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the Claimant interest on said
compensation at the rate of 5% p.a. as of 1 September 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
41. Finally, taking into account the applicable Regulations, the Chamber 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
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concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
42. In this regard, the Chamber highlighted that, against players, the consequence of the
failure to pay the relevant amounts in due time shall consist of a restriction on playing in
official matches up until the due amounts are paid. The overall maximum duration of the
restriction shall be of up to six months.
43. Therefore, bearing in mind the above, the Chamber decided that the player must pay the
full amount due (including all applicable interest) to the club within 45 days of notification
of the decision, failing which, at the request of the creditor, a restriction on playing in official
matches for the maximum duration of six months shall become immediately effective on
the player in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
44. The player shall make full payment (including all applicable interest) to the bank account
provided by the club in the Bank Account Registration Form, which is attached to the
present decision.
45. The Chamber 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
46. 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.
47. Furthermore, 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.
48. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, FC Universitario, is partially accepted.
2.
The First Respondent, Aboubacar Roy Ndoutoumou Kone, must pay to the Claimant USD
50,000 as compensation for breach of contract without just cause plus 5% interest p.a.
as from 1 September 2023 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be imposed with a restriction on playing in official matches up
until the due amounts are paid. The overall maximum duration of the restriction shall
be of up to six months on playing in official matches.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of
this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules).
CONTACT INFORMATION
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