Labour Disputes
Texto da decisão
REF FPSD-6004
Decision of the
Dispute Resolution Chamber
passed on 4 August 2022
regarding an employment-related dispute concerning the player
Abdoulaye Ouattara
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairperson
Laurel Vaurasi (Fiji), Member
Khadija Timera (Senegal), Member
CLAIMANT:
Abdoulaye Ouattara, France
Represented by Fitzgerald Thomas
RESPONDENT:
FK Senica, Slovakia
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I. Facts of the case
1.
On 25 January 2022, the French player Abdoulaye Ouattara (hereinafter: the player or the
Claimant) and the Slovak club FK Senica (hereinafter: the club or the Respondent) concluded
an employment contract valid as from the same date until 30 June 2022 (hereinafter: the
contract).
2.
In accordance with the information available in the Transfer Matching System (TMS), the
player was born on 8 January 2021.
3.
Under the contract, the player was entitled inter alia to the following amounts:
a. Monthly salary of EUR 1,750 gross;
b. EUR 400 as accommodation;
c. A “fly ticket” once a year;
d. A signing bonus of EUR 1,000, payable in two instalments of EUR 500 each
respectively on 30.01.2022 and 25.02.2022; and
e. Various bonuses for performance.
4.
Clause 1.3 of the contract states that it would be automatically extended in the following
conditions:
a. If the player played at least 46 minutes in 5 matches of the local league, the
contract would be extended until 30 June 2023;
b. If the player played at least 46 minutes in 20 matches of the local league, the
contract would be extended until 30 June 2024.
5.
On 5 April 2022, the player put the club in default and stated as follows:
“I, the undersigned, Abdoulaye OUATTARA, hereby contact you with this formal notice
letter, in regard of an overdue payment of two months salary plus signing bonus, game
bonuses and accommodation allowance.
On January 25h 2022, we have signed an employment contract (attached to this letter)
and agreed the terms payment conditions for my remuneration for the monthly salary
(1.750 euros gross per month, provide accommodation at the club expense in amount
of400 euros per month and a signing bonus of 1000 euros gross payable as following:
500 euros until 30/01/2022 and 500 euros until 25/02/2022).
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Until today I didn’t receive any amounts of payment, regards to accommodation the
owner of the room (vip restaurant) told me you didn’t pay him and put me out of the
room. My agent came to Senica and paid him 300 euros for 5 days to find a new place.
My agent finally found an hotel for me and my teammate Raphael ANABA and paid the
hotel for us (invoice of hotel as proof), without any financial incomes I had to pay for my
food so finaly I am paying to train every days.
Until the date of this present notice, you are still liable to those amounts.
I expressly demand that payment of the full amounts be paid.
If the payement is not done within the 10 days from this date and in accordance with
Article 12Bis of the FIFA Regulations on the Status and Transfer of Players (RSTP), I will
immediately forward the file to FIFA.”
6.
On 15 April 2022, the player put the club in default for a second time, granting the latter
with 15 days to cure its contractual breaches, to no avail.
7.
On 24 May 2022, the player terminated the contract in writing.
8.
The player remained unemployed following the termination of the contract.
II. Proceedings before FIFA
9.
On 10 May 2022, the player lodged a claim before FIFA for outstanding remuneration and
compensation for breach of contract, stating inter alia as follows (freely translated to
English):
“Therefore, according to Article 14bis of the FIFA Regulations on the Status and Transfer
of Players, the player Abdoulaye Ouattara is entitled to terminate his contract for just
cause due to unpaid wages.
We therefore request that the player obtain the termination of the contract and his
contractual release in order to find an employing club for the coming season, as well as
compensation for the financial loss”.
10. On 19 May 2022, the FIFA general secretariat sent a letter whereby it requested the player
to complete his claim and inter alia specify the amounts sought. More in particular, said
letter indicated as follows:
“Dear Madam or Sir,
We acknowledge receipt of your correspondence relating to the above-mentioned matter
and have noted its contents.
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We have taken due note of the request of the player to “obtain the termination of the
contract and his contractual release so he can find a new club for the upcoming season
as well as compensation for financial damages”.
In respect of such request, we would like to inform you that on the basis of article 14 of
the FIFA Regulations on the Status and Transfer of Players (hereinafter: Regulations),
either party to an employment contract between a professional player and a club may
terminate the contract if they deem to have a just cause for such a termination. In case
of a dispute, it would be up to the competent decision-making body to establish whether
a contractual breach occurred, with or without just cause, who is to be deemed
responsible and what the consequences of such a breach would be (cf. article 17 of the
Regulations). Equally, we kindly inform you that jurisprudence of the Dispute Resolution
Chamber (DRC) regarding the foregoing is available via legal.fifa.com.
Additionally, should you envisage to sign a new employment contract with another club,
affiliated to another association, we would like to refer you to the provisions of Annexe
3 of the Regulations, which concerns inter alia the administrative procedure governing
the transfer of players between associations.
In this regard, according to article 8.2 paragraph 1 of said Annexe, all data allowing the
new association to request an International Transfer Certificate (ITC) shall be entered
into the Transfer Matching System (TMS), confirmed and matched by the club wishing to
register a player during one of the registration periods established by that association.
When entering the relevant data, the new club shall upload into the TMS, amongst other
documents, a copy of the employment contract signed between it and the professional
player.
Thereupon, the new association shall immediately request the former association
through the TMS to deliver an ITC for the player (“ITC request”; cf. article 8.2 paragraph
2 of the Annexe 3 of the Regulations).
Moreover, in case the former association rejects the ITC request, and if the new
association asks for FIFA’s assistance in obtaining the relevant ITC, the Football Tribunal
would, provided the necessary conditions are fulfilled, be in a position to intervene with
regard to the international clearance. In exceptional circumstances, FIFA might then take
provisional measures regarding the registration of the player for his new club (cf. article
8.2 paragraph 7 of Annexe 3 of the Regulations).
11. The player subsequently replied and filed a copy of his termination letter dated 24 May
2022, together with the following breakdown of amounts sought:
“5- Detailed breakdown of the amount in dispute:
As define by the professional contract signed on the 25 of January 2022
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Monthly Salary of 1750€ gross
February – 1750€
March – 1750€
April – 1750€
Total amount salaries = 5250 euros in gross
As we are requesting the termination of the contract for just cause, we don’t ask for
payment of May and June 2022.
As define by Annex no 1 to the contract signed on the 25 of January 2022 :
“The player is entitled to a signing bonus of 1000€ brutto, payable as following :
500€ until 30.01.22 and 500€ until 25.02.2022”.
As define by Annex no 1 to the contract signed on the 25 of January 2022 :
The player was entitled to different bonuses based on the points earned by the team in
the fortuna liga, but we don’t claim for those payments.
Total amount claimed : 5250 + 1000 = 6250€ gross”
12. The Respondent did not file a reply to the player’s claim, in spite of having been invited to
do so by the FIFA general secretariat.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. 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 10 May 2022 and submitted
for decision on 4 August 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.
14. 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, par.
1, 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
French player and a Slovak club.
15. 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 10 May 2022, the March 2022 edition
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of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
16. 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
17. 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
18. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the matter at hand pertains to the early termination
of the contract by the Claimant, based on the alleged non-payment of certain financial
obligations by the Respondent as per the contract, in accordance with art. 14bis of the
Regulations.
19. 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 Respondent and, if so, whether the formal pre-requisites of art. 14bis of
the Regulations had in fact been fulfilled.
20. To this end, the Chamber highlighted that the Respondent failed to reply to the claim,
therefore renouncing to its right to contest the allegations of the Claimant. As such, the
Chamber confirmed that a decision was to be made on the basis of the argumentation
and evidence brought forward by the Claimant.
21. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly
salaries on their due dates, the player will be deemed to have a just cause to terminate
his contract, provided that he has put the debtor club in default in writing and has granted
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a deadline of at least 15 days for the debtor club to fully comply with its financial
obligation(s).
22. The Chamber noted that the Claimant claims not having received any of his remuneration
agreed under the contract from February, March, and April 2022. Furthermore, the
Chamber noted that the Claimant has provided written evidence of having put the
Respondent in default on 15 April 2022, i.e. at least 15 days before unilaterally terminating
the contract on 24 May 2022.
23. The Chamber also noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded
between the parties. Nonetheless, no reply to the claim was filed as underlined before.
24. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate
the contract, based on art. 14bis of the Regulations.
ii. Consequences
25. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
26. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, is equivalent to EUR 6,250,
corresponding to the salaries between February and April 2022, as well as the signing
bonus of EUR 1,000.
27. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the
amounts which were outstanding under the contract at the moment of the termination,
i.e. EUR 6,250.
28. Taking into consideration that the Claimant’s has not filed any request for interest, the
Chamber confirmed that under the principle ne ultra petita no amounts could be granted
in this respect.
29. Along the same lines, the Chamber highlighted that, in principle, the player would be
entitled to compensation for breach of contract without just cause. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations,
the amount of compensation shall be calculated, in particular and unless otherwise
provided for in the contract at the basis of the dispute, with due consideration for the law
of the country concerned, the specificity of sport and further objective criteria, including
in particular, the remuneration and other benefits due to the player under the existing
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contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
30. However, the Chamber stressed that surprisingly the player has not claimed any amounts
in this respect. As such, and on the basis of the forecited ne ultra petitia principle, the
Chamber was prevented from awarding any compensation to the player.
31. For the sake of completeness, the Chamber confirmed that under the aforementioned
principle, combined with the fact that the question of the contract extension was
unchallenged by the player, it could also not grant any relief in this respect.
iii. Sporting sanctions
32. The Chamber noted that the Respondent had also on several occasions in the recent past
been held liable by the Football Tribunal for the early termination of the employment
contracts without just cause, namely in the following cases: FPSD-6275, FPSD-6279, and
FPSD-6005.
33. Under article 17 par. 4 of the Regulations, in addition to the obligation to pay
compensation (if any), sporting sanctions shall be imposed on any club found to be in
breach of contract or found to be inducing a breach of contract during the protected
period.
34. As to the protected period, this is defined in the Regulations as “a period of three entire
seasons or three years, whichever comes first, following the entry into force of a contract,
where such contract is concluded prior to the 28th birthday of the professional, or two entire
seasons or two years, whichever comes first, following the entry into force of a contract, where
such contract is concluded after the 28th birthday of the professional”.
35. In the present case, the player was younger than 28 years old when he signed the
contract. For three years or three entire seasons had not elapsed by the time the contract
was terminated, the Chamber confirmed that said termination took place within the
protected period.
36. At the same time, the DRC recalled that both (a) the player terminated the employment
relationship with the club with just cause, as the club had was found to have breached
the contract; and (b) the club was a repeat offender in this respect. As such, and by virtue
of art. 17 par. 4 of the Regulations, the Chamber decided that the Respondent shall be
banned from registering any new players, either nationally or internationally, for the two
next entire and consecutive registration periods following the notification of the present
decision.
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37. For the sake of completeness, the Chamber recalled that in accordance with article 24
par. 3 lit. a) of the Regulations, the consequences for failure to pay relevant amounts in
due time may be excluded where the Football Tribunal has imposed a sporting sanction
on the basis of article 17 in the same case. Consequently, the Chamber confirmed that
the consequences for failure to pay relevant amounts in due time envisaged by art. 24 of
the Regulations were excluded in the present matter, and that should the Respondent fail
to timely comply with this decision, it would be for the FIFA Disciplinary Committee to
adopt the necessary measures in accordance with the FIFA Disciplinary Code.
d. Costs
38. 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.
39. 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.
40. Lastly, the DRC 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, Abdoulaye Ouattara, is accepted.
2.
The Respondent, FK Senica, has to pay to the Claimant EUR 6,250 as outstanding
remuneration.
3.
Full payment shall be made to the bank account indicated in the enclosed Bank Account
Registration Form.
4.
The Respondent shall be banned from registering any new players, either nationally or
internationally, for the two next entire and consecutive registration periods following the
notification of the present decision.
5.
If full payment is not made within 45 days of notification of this decision, the present
matter shall be submitted, upon request of the Claimant, to the FIFA Disciplinary
Committee.
6.
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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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