Labour Disputes
Texto da decisão
REF 20-00777
Decision of the
DRC Judge
passed on 14 October 2020,
regarding an employment-related dispute concerning the player Sedjro Paterne Counou
BY:
José Luis Andrade (Portugal), member
CLAIMANT / COUNTER-RESPONDENT:
Sedjro Paterne Counou, Benin
Represented by Mr. Pedro Macieirinha
RESPONDENT / COUNTER-CLAIMANT:
Al Merrikh Sport Club, Sudan
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I. FACTS OF THE CASE
1.
According to the player from Benin, Sedjro Paterne Counou (hereinafter: player or
Claimant/Counter-Respondent), on an unknown date, the Sudanese club, Al Merrikh Sport Club
(hereinafter: club or Respondent/Counter-Claimant) made the following offer to him:
2.
According to the player, he accepted such offer and subsequently, on an unknown date the
club sent a draft of an employment contract (hereinafter: draft) to him, valid as from 15 January
2020 until 14 January 2021.
3.
According to the draft, the club undertook to pay the player a total amount of USD 55,000 as
follows:
- USD 10,000 as “sign-on fee”;
- USD 10,000 “after 6 months”;
- USD 2,916 as monthly salary due at the end of each month.
4.
On 10 May 2020, the player sent a letter to the Respondent, requesting payment of USD 55,000
as compensation for breach of contract within 15 days.
5.
On 26 May 2020, the player lodged a claim against the Respondent in front of FIFA requesting
payment of USD 55,000 as compensation for breach of contract plus 5% interest p.a. as of 10
May 2020.
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6.
In his arguments, the player maintained that the club “breached the Contract offer”, failed to
provide him with the flight tickets and held that it refused to sign the draft.
7.
In its reply to the claim, the club held that no contract has been concluded between the parties.
8.
Moreover, the club stated that the player orally accepted the contract offer made by the
Respondent. However, the player “has not signed the contract sent to him and returned it as
agreed”.
9.
The club added that the player received an official offer from the Jordanian Al-Hussein Sport
Club. As result, the club could not “register a third foreign professional player according to
SFA’s regulation”.
10. Finally, the respondent maintained that the player did not act in good faith as he did not tell
the truth and that the player is currently registered with Al-Hussein Sport Club.
11. Furthermore, the club provided a copy of the player’s flight ticket issued on 11 December 2019,
according to which the flight’s departure was scheduled on 6 July 2020.
12. To conclude, the club requested to reject the player’s claim and lodged a counterclaim, by
means of which it requested USD 30,000 as “compensation”.
13. In his response to the counterclaim, the player reiterated his position and maintained that the
club’s allegations are false.
14. The player explained that he received offers from others club before receiving the club’s
proposal. However, the player alleged having accepted and returned the club’s offer.
15. The player stated that, as result, the club started the administrative procedures for his visa and
flight tickets.
16. The player further sustained that he was supposed to travel to Sudan on 20 December 2020.
However, the club only managed to get tickets for the 28th of December 2019. Moreover, the
player held that the flight ticket was cancelled by the club and as a consequence he could not
travel to Sudan and that the club, on 31 December 2019, sent a message to the player
apologizing for what happened.
17. The player continued by stating that due to this issue he lost other offers from several clubs
and later he received an offer from Al-Hussein Sport Club for 8 months. The player had no
choice but to accept it, given that the Respondent rejected the contract signed by the player.
18. Finally the Claimant stated that the “compensation submitted by the Respondent Club shall be
rejected.”
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19. According to TMS, the player signed a contract with the Jordanian club Al Hussein, valid as
from 1 February 2020 until the end of the season 2020, by means of which the club undertook
to pay to the player the amount of USD 30,000, payable in 10 monthly salaries as from February
2020. Moreover, the player will receive USD 15,000 as sign-on fee.
II. CONSIDERATIONS OF THE DRC JUDGE
1.
First of all, the Dispute Resolution Chamber judge (hereinafter also referred as DRC judge)
analysed whether he was competent to deal with the case at hand. In this respect, he took note
that the present matter was submitted to FIFA on 26 May 2020. Consequently, the DRC judge
concluded that the November 2019 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural
Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of
the Regulations on the Status and Transfer of Players (edition October 2020), he is competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a player and a club.
3.
Furthermore, the DRC judge 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 Player (edition October 2020), and
considering that the present claim was lodged on 26 May 2020, the March 2020 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
4.
The competence of the DRC judge and the applicable regulations having been established, the
DRC judge entered into the substance of the matter. In this respect, the DRC judge started by
acknowledging all the above-mentioned facts as well as the arguments and the documentation
submitted by the parties. However, the DRC judge 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. In particular, the DRC judge
recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use,
within the scope of proceedings pertaining to the application of the Regulations, any
documentation or evidence generated or contained in the Transfer Matching System (TMS).
5.
In continuation, the DRC judge took notice of the player’s Claim, alleging being entitled to
compensation for breach of contract since the club refused to sign the draft. Further, the player
held having accepted the offer made by the club.
6.
The club, for its part, rejected the claim, maintained that no contractual relationship was
concluded and lodged a counterclaim against the player.
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7.
Furthermore, DRC judge noted that the player rejected the club’s counterclaim.
8.
In view of this dissent between the parties in respect of the basic question as to whether or not
an employment contract between them had been concluded, the DRC judge firstly referred to
art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis
of an alleged fact shall carry the respective burden of proof. The application of the said principle
in the present matter led the DRC judge to conclude that it was up to the player to prove that
an employment contract, on the basis of which he claims compensation for breach of contract
from the club, indeed existed.
9.
Having stated the above, the DRC judge recalled that the player maintained that he had
accepted the club’s offer, returned it to the club and then subsequently received the draft,
which he allegedly signed as well and returned to the club. The club on the other hand stated
that the player orally accepted the offer, but failed to return the draft.
10. In this regard, the DRC judge established that the player failed to submit any evidence that he
indeed had signed the draft and returned it to club.
11. Having duly taken note of the documentation presented by the player, the DRC judge held
that to be able to assume that the parties had indeed been bound through a contractual
relationship with the terms as described by the draft, it had to be established, beyond doubt,
by documentary evidence, that the said parties had indeed entered into a respective labour
agreement, and, if so, under which terms. In general, the DRC judge held that he could not
assume that an employment contract had been concluded by and between parties simply
based on circumstances which, in general, may be likely but are not certain to indicate the
signing of a contract. In addition, the DRC judge pointed out that he must be very careful with
accepting documents, other than an actual employment contract, as evidence for the
conclusion of a contractual relationship.
12. In respect of the foregoing, the DRC judge had to conclude that the documents presented by
the player did not prove beyond doubt that the club and the player had validly entered into
an employment contract.
13. As a consequence, the DRC judge decided that, since the player had not been able to prove
beyond doubt that an employment contract had validly been concluded between himself and
the club, there was no possibility for the Chamber to enter into the question whether or not
such alleged employment contract had been breached.
14. All the above led the DRC judge to conclude that the claim of the player has to be rejected.
15. As to the club’s counterclaim, the DRC judge held that the club failed to establish the basis of
the claim for breach of contract. Furthermore, he emphasised that the club itself argued that
no contractual relationship was concluded and therefore, as established above, no contractual
basis for such counterclaim exists.
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16. On account of the above, the DRC decided to reject the club’s counterclaim.
III. DECISION OF THE DRC JUDGE
1.
The claim of the Claimant/Counter-Respondent, Sedjro Paterne Counou, is rejected.
2.
The counterclaim of the Respondent/Counter-Claimant, Al Merrikh Sport Club, is rejected.
For the DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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