Labour Disputes
Texto da decisão
REF. FPSD-12284
Decision of the
Dispute Resolution Chamber
passed on 11 January 2024
regarding an employment-related dispute concerning
the player Charles Savadogo
BY:
Frans de Weger (the Netherlands), Chairperson
Michele Colucci (Italy), member
Dana Mohamed Al-Noaimi (Qatar), member
CLAIMANT:
Charles Savadogo, Côte d’Ivoire
Represented by Ms Hatice Büşra Aşici
RESPONDENT:
ZED FC (FC Masr), Egypt
pg. 2
REF. FPSD-12284
I. Facts of the case
1.
On 15 September 2022, the Ivorian player Charles Savadogo (hereinafter: Claimant or
player) and the Egyptian club FC Masr (hereinafter: club or Respondent) concluded an
employment contract (hereinafter: Contract) valid as from the date of signature until the
end of the 2024-2025 season (cf. TMS: 31 May 2025).
2.
According to the Contract, the Respondent undertook to pay the Claimant the following
remuneration:
-
Season 2022-2023: USD 400,000 payable on 1 October 2022 plus 10 instalments of
USD 40,000 each until June 2023;
-
Season 2022-2023: USD 350,000 payable on 1 August 2023 plus 10 instalments of
USD 25,000 each until June 2024;
-
Season 2022-2023: USD 385,000 payable on 1 August 2024 plus 10 instalments of
USD 27,500 each until June 2025.
3.
On 22 June 2023, without any prior warning, the Respondent purportedly sent the Claimant
an empty “mutual termination agreement” to sign, in which it was stipulated that the
Claimant would have to waive his entitlement to any outstanding amounts or salaries.
4.
At an unspecified date, when the Respondent had to submit the final list of players eligible
to play for the upcoming season (i.e. 2023-2024), the Claimant had allegedly been excluded
from such list.
5.
On 20 September 2023, the Claimant allegedly sent the Respondent a default notice stating
that the Claimant had not only been sent the empty mutual termination letter, but also
excluded from the list of registered players. A 15-day deadline was granted to remedy the
alleged breach.
6.
On 6 October 2023, the Claimant unilaterally terminated the Contract.
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REF. FPSD-12284
II. Proceedings before FIFA
7.
On 18 October 2023, 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
8.
According to the Claimant, he had been excluded from the Respondent’s squad for the
2023-2024 season, as well as being sent an empty termination agreement by the
Respondent to communicate that the latter was not interested in his services any longer.
9.
The Claimant emphasised that there was no formal warning or indication by the
Respondent that it had the intention to depart from the Contract, and pointed to the bad
faith of the latter.
10. The Claimant also asserted that he offered the Respondent a chance to remedy its
behaviour, as well as a 15-day deadline, to no avail.
11. Therefore, the Claimant formulated the following request for relief:
- USD 1,260,000 as compensation, corresponding to the alleged residual value of the
Contract as from termination;
- USD 82,500 additional compensation based on the abusive nature of the Respondent’s
conduct.
b. Position of the Respondent
12. Despite having been invited to do so by the FIFA administration, the Respondent failed to
submit a position to the aforementioned claim.
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REF. FPSD-12284
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 18 October 2023 and submitted
for decision on 11 January 2024. Taking into account the wording of art. 34 of the October
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 lit. b) of the
Regulations on the Status and Transfer of Players March 2023 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 an Ivorian player
and an Egyptian 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 (May 2023 edition), and
considering that the present claim was lodged on 18 October 2023, 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
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.
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REF. FPSD-12284
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 dispute revolved around the question of the
lawfulness of the Claimant’s unilateral termination of the Contract.
19. In this context, the Chamber acknowledged that it its task was to determine whether or not
the Respondent had indeed behaved abusively, as alleged by the Claimant, whether or not,
on the basis thereof, the Claimant could be held to have had a just cause to terminate the
Contract prematurely, and finally what the consequences of such unlawful contractual
termination may be.
20. Prior to entering the analysis of the matter, the Chamber wished to recall the respective
position of the parties.
21. On one hand, the Chamber took note of the Claimant’s rather concise submission, in which
the latter alleged that he had a just cause to terminate the Contract due to having been
excluded from the squad, as well as having been offered a mutual termination agreement
to indicate that the Respondent no longer wanted him.
22. On the other hand, the Chamber took note that the Respondent failed to submit a position
of its own, thereby leaving the claim of the Claimant uncontested.
23. Notwithstanding the above, however, the Chamber wished to remind the parties of the
crucial importance of art. 13 par. 5 of the Procedural Rules, according to which a party that
asserts a certain fact also bears the burden of proving its veracity.
24. This meant that it was not only the Respondent’s duty to disprove any allegations of breach
of contract, but also, that the Claimant bore a burden of proving that the events alleged
had, in fact, occurred as such in the first place.
25. With this in mind, the Chamber went on to assess the matter as to its substance.
26. The Chamber was firstly able to determine that the Contract existed, and was validly
concluded, not only due to the fact that the Respondent and the Claimant both signed /
stamped it on the copy submitted to the file, but also since the file corresponding to the
Claimant’s transfer to the Respondent on TMS also contained the same agreement.
27. Subsequently, the Chamber went on to analyse the allegations presented by the Claimant:
firstly, the alleged termination agreement presented to the Claimant by the Respondent,
and subsequently, the alleged exclusion from the registration list by the Respondent, and
the consequent prevention of the Claimant to carry out his contractual duties.
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REF. FPSD-12284
28. In terms of the purported termination agreement, the Chamber deemed it noteworthy that
the copy submitted to the file had been entirely “typed up” / composed in pure text format.
More specifically, said agreement contained no signatures, no stamps, and no letterhead
of either the club itself or the Egyptian Football Association.
29. This caused the Chamber to already express serious doubts as to the authenticity of such
document, exhibiting no clear link to the Respondent, and undermining the allegation that
the Claimant had been handed such document to signify that he was no longer welcome
at the club.
30. Beyond this, however, the Chamber deemed it significant that the Claimant had failed to
provide any evidence as to the remittance of such document from the Respondent to
himself. The Chamber considered that, either a proof of email or a signed receipt of having
received such document in person would have been important to this effect.
31. Therefore, considering that the Chamber was not only unable to link the termination
agreement itself to the Respondent, but also lacking any evidence that such agreement
had been sent by the Respondent to the Claimant, such document had to be disregarded
on account of falling short of the respective thresholds set by art. 13 par. 5 of the
Procedural Rules.
32. Subsequently, the Chamber considered the argument put forward by the Claimant
concerning the registration list of the Respondent. In this respect, it was recalled that the
Claimant alleged that he was excluded from the list of registered / eligible players for the
upcoming season, preventing him to exercise his obligations under the Contract.
33. Notwithstanding, also here, the Chamber emphasised that no evidence whatsoever, apart
from the default notice in which reintegration was requested, had been adduced to the file.
The Chamber considered that the Claimant, having become aware of such exclusion from
the list of eligible players, should have demonstrated that this actually took place, as
alleged.
34. Moreover, crucially, the Chamber once again emphasised the lack of a proof of remittance
of the respective warning letter to the Respondent, without which it was unable to establish
that the Claimant had even raised such potential breach of contract with the Respondent.
35. In line with the above, the Chamber was equally unable to determine, based on the
evidence submitted to the file, that the Claimant had indeed been unlawfully deregistered,
and consequently prevented from exercising his contractual duties.
36. Having stated the above, the Chamber wished to recall its own longstanding jurisprudence,
in accordance with which a premature contractual termination may only be an ultima ratio
measure, arising when the counterparty committed either a very serious or consistent /
repeated breach of contract.
pg. 7
REF. FPSD-12284
37. In the case at hand, particularly considering the nature of the serious allegations brought
forward by the Claimant, as well as the high amount in dispute, an uncontested allegation
of breach of contract, with no corroborating evidence, could not be deemed as sufficient
to establish any wrongdoing by the Respondent – certainly not to the extent of giving rise
to liability for compensation payable by the latter.
38. Therefore, as no breach of contract could be established in the case at hand, the Chamber
had no other choice but to conclude that the Claimant had terminated the Contract without
just cause on 6 October 2023.
39. Based on the above, and in the absence of a counterclaim by the Respondent, the Chamber
concluded that no liability had arisen on either party in the matter at hand. Consequently,
the Chamber decided that the claim of the Claimant must be rejected.
d. Costs
40. 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.
41. 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.
42. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 8
REF. FPSD-12284
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Charles Savadogo, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-12284
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
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