Labour Disputes
Texto da decisão
REF FPSD-5760
Decision of the
Dispute Resolution Chamber
passed on 7 July 2022
regarding an employment-related dispute concerning the player Koukou Emile N'dri
BY:
Frans DE WEGER (Netherlands), Chairperson
José Luis ANDRADE (Portugal), member
Peter LUKASEK (Slovakia), member
CLAIMANT:
Koukou Emile N'dri, Côte d'Ivoire
RESPONDENT:
FC Van, Armenia
Represented by Art Legal Law Firm
REF FPSD-5760
I Facts
1. On 5 August 2021, the Ivorian player Koukou Emile N'dri and FC Van concluded an employment
contract valid as from the date of signature until 1 June 2024.
2. According to the Annex 1 of the contract (note: the Annex 1 was only provided by the Respondent in
the reply), the player was entitled to the following remuneration:
“1. The monthly salary of the Player is set $300 (three hundred USD) net. If by December 2021 the
Player plays 50% or more of the playing time, then the amount of the salary will increase up to $400 (four
hundred USD) net. Also, from January 2021 till May 2021, if the Player plays 50% or more of the playing time,
then the amount of the salary will increase up to $500 (five hundred USD) net.
The salary will be paid within the first ten days of the month, and it doesn't include any taxes.”
3. Clause 9.6 of the contract stipulated the following:
“9.6 If a dispute between the Parties is not solved through negotiations, it shall be solved by the FFA
Dispute Resolution Chamber, whose decision may be appealed to the Court of Arbitration for Sport (CAS).”
4. According to the club, on 10 February 2022, the parties concluded a mutual termination agreement
with the following contents:
“1. The parties have terminated the contract concIuded on 25.08.2021 by mutual agreement, which term
ends 01.06.2024
2. The parties mutually don't have any financial or other obligations
3. The agreement consist of 3 copies, one for each party and one for FIFA.”
5. In this regard, the Respondent provided an alleged original of said document via ordinary post.
REF FPSD-5760
6. On 11 February 2022, the sports director of the club sent a “WhatsApp” message to the player’s
intermediary with, inter alia, the following contents:
“We'II break the contract with the player and send him home
He does not correspond to the level of our players and tactically he is very weak
All this is coach's decision
We have spoken with 5 clubs but no one wants him on loan.”
7. On 19 February 2022, the player returned to Côte d’Ivoire.
8. The player informed FIFA that he subsequently remained unemployed.
9. On 13 April 2022, Koukou Emile N'dri lodged a claim before FIFA for breach of contract without just
cause and requested the payment of USD 10,800 as compensation for breach of contract without just
cause, plus 5% interest p.a. as from the date of his dismissal.
10. The Claimant explained that the club never provided him with the annexe 1 of the contract.
11. In addition, the Claimant argued that the club never assisted him with the administrative proceedings
in order to obtain a work permit in Armenia.
12. The Claimant considered that the Respondent terminated the contract without just cause, and argued
that “it is absurd to believe that the new coach's decision not to rely on the player could be a valid reason for
the unilateral breach of contract.”
13. In its reply, the Respondent contested the competence of FIFA and referred to clause 9.6 of the
contract.
14. As to the substance, the Respondent provided a copy of the Annex 1 to the contract.
15. As to the player’s remuneration, the Respondent argued that “the player's salary was only $300, and it
should be increased based on conditions, if he plays more and more of his playing time.”
16. However, according to the Respondent, the aforementioned conditions never happened, and therefore
the player’s salary was only USD 300.
17. In relation to the WhatsApp conversation, the club explained that the payer’s representative accepted
to mutually terminate the contract. The club explained that “the draft of the termination agreement was
physically given to the Player to review and discuss.”
18. The Respondent considered that that mentioned facts and allegations in the Player’s claim are
unreasonable, understandable, baseless and unproved.
19. In his replica, the Claimant rejected the arguments of the Respondent.
20. In particular, the Claimant considered that the termination agreement is forged and stated that it was
not signed by him.
REF FPSD-5760
21. The Claimant noted that the signatures are not identical in all documents.
22. The player provided a statement (“Déclaration sur l’honneur”) in which he declared the following:
« En effet, si j'avais vraiment signé ledit document, la couleur du stylo utilisé aurait été plus nette que celle
proposé par le FC VAN qui à mon avis, apparait comme une signature numérisée. C'est ce qui explique le fait
que, si l'on essaie de rapprocher (zoomer) l'image dudit document au niveau des signatures, celle-ci s'effacent
y compris le cachet du FC VAN surtout celui de droite.
En outre, si on compare de près la clarté et la régularité de l'encre sur le supposé document de résiliation el
sur les documents d’émargement, et ce, malgré les nombreux stylos et peut-etre de différentes marques el
billes desdits stylos, on peut constater aisément que l'encre est plus claire sur les documents d'émargement
que sur le supposé document de résiliation. »
Free translation into English :
"Indeed, if I had really signed the said document, the colour of the pen used would have been clearer than the
one proposed by the FC VAN which, in my opinion, appears as a digitised signature. This explains the fact that,
if one tries to bring closer (zoom in) the image of the said document at the level of the signatures, these fade
away including the stamp of the FC VAN especially the one on the right.
Moreover, if we compare closely the clarity and regularity of the ink on the supposed document of cancellation
and on the documents of emissary, and this, in spite of the numerous pens and perhaps of different marks and
balls of the aforementioned pens, we can easily notice that the ink is clearer on the documents of emissary
than on the supposed document of cancellation.”
23. In its duplica, the Respondent considered that “the Player is basically manipulating and hiding truth,
which is unacceptable conduct.”
24. As to the “WhatsApp” messages, the Respondent argued that it terminated the employment
agreements with the head coach and his staff in the end of 2021, and therefore the WhatsApp
conversations of former employees and player’s agents are not in the possession and custody of the
Club.
25. The Respondent argued that the player lacked to prove every and all facts that he mentioned in his
claim and statements.
REF FPSD-5760
II 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 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 13 April 2022 and submitted for decision on 7 July 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.
2. 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 2022 edition), it is competent to deal with the
matter at stake, which concerns an employment-related dispute with an international dimension
between an Ivorian player and an Armenian club.
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 (June 2022 edition), and considering that the present claim was
lodged on 13 April 2022, the June 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. Merits of the dispute
5. 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.
i.
Main legal discussion and considerations
6. The Chamber first noted that the parties concluded an employment contract valid as from 5 August
2021 until 1 June 2024.
REF FPSD-5760
7.
Subsequently, the Chamber observed that the player lodged a claim before FIFA against the club,
arguing that, on 11 February 2022, the club terminated said contract without just cause.
8.
On the other hand, the Chamber observed that the club argued that the matter was settled with the
signature of an amicable settlement on 10 February 2022 and provided an alleged original copy of
the mutual termination agreement via post.
9.
In view of the above, the Chamber understood that the matter at stake consists in (1) to determine
whether the contract was terminated on 11 February 2022 and (2) whether the alleged mutual
termination agreement is to be deemed as valid and binding.
10. In this respect, the Chamber first noted that, according to the player, his contract was de facto
terminated on 11 February 2022 following a message sent to his intermediary, which stated that
following:
“We'II break the contract with the player and send him home
He does not correspond to the level of our players and tactically he is very weak
All this is coach's decision
We have spoken with 5 clubs but no one wants him on loan.”
11. After analysing the contents of said message, the Chamber observed that it is relatively ambiguous,
as it refers to the possibility of terminating the contract, but does not contain a clear decision to
terminate (i.e. it refers to a termination in the future). Therefore, the Chamber considered that the
message of 11 February 2022 cannot be deemed, per se, as a form of termination.
12. Subsequently, the Chamber turned its attention to the alleged mutual termination agreement and
noted that an alleged original copy of the mutual termination agreement via post.
13. In this respect, the Chamber further noted that the player vehemently alleged that his signature
added to the mutual termination agreement was forged. In this respect, the Chamber deemed
appropriate to remind the parties that, as a general rule, FIFA’s deciding bodies are not competent
to decide upon matters of criminal law, such as the one of alleged falsified signatures of documents,
and that such affairs fall into jurisdiction of the competent national criminal authority.
14. After a thorough analysis of the evidence provided by the parties, the Chamber concluded that, in
spite of the technical remarks made by the player, there was no substantial evidence that his
consent was forged. Consequently, a majority of the Chamber decided to set aside the club’s
argumentation in this regard.
15. In addition, the Chamber considered that the evidence provided by the player, which was
fundamentally a “WhatsApp” message directed to his intermediary, is likely to be a less convincing
evidence than the provided mutual termination agreement.
REF FPSD-5760
16. As a result, the Chamber concluded that the parties mutually agreed to terminate the contract on
10 February 2022.
17. In view of the above, the Chamber established that the claim of the Claimant had to be rejected.
d.
Costs
18. 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.
19. 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.
20. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
REF FPSD-5760
III Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Koukou Emile N'dri, is admissible.
2.
The claim of the Claimant is rejected.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-5760
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).
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