Labour Disputes
Texto da decisão
REF. FPSD-14248
Decision of the
Dispute Resolution Chamber
passed on 29 May 2024
regarding an employment-related dispute concerning
the player Abdoulaye Sylla
BY:
Angela COLLINS (Australia), member
CLAIMANT:
Abdoulaye Sylla, France
Represented by Kristof de Saedeleer
RESPONDENT:
FC Seraing, Belgium
pg. 3
REF. FPSD-14248
I. Facts of the case
1.
On 22 July 2022, the French player Abdoulaye Sylla (hereinafter the Claimant or the Player)
and the Belgian club FC Seraing (hereinafter the Respondent or the Club) concluded
employment agreement (hereinafter the Employment Agreement), valid as from 25 July 2022
until 30 June 2024.
2.
In particular, in accordance with Clause 11 of the Employment Agreement, the Claimant
and the Respondent (jointly referred to as the Parties) agreed upon, inter alia, the following
financial conditions:
-
Season 2022/2023:
o Sign-on fee of EUR 19,400, payable with September 2022 salary;
o monthly salary of EUR 7,000.
-
Season 2023/2024:
o Sign-on fee of either EUR 17,240 (“championnat de D1 A”) or EUR 12,068
(“championnat de D1 B”)
o monthly salary of EUR 8,000 (“championnat de D1 A”) or EUR 5,600
(“championnat de D1 B”)
3.
On 2 April 2023, the Claimant received a WhatsApp message, requesting the Player to
empty his locker and to start training with Team B until the end of the season.
4.
On 6 April 2023, the Respondent terminated the Employment Agreement with the
Claimant, adducing the following contractual breaches:
“1. During the meeting this Saturday 01/04/2023 Seraing - KAA Gent, you refused to take part
in the warm-up and thus follow the instructions of your coach since you had been selected
for this meeting.
2. During morning training on April 3, 2023, you encouraged the entire group to once again
not follow the coach's instructions, which forced the coach to cancel this training.
3. This Wednesday 04/05/2023, you once again joined the group selected by the coach without
his agreement.” (free translation from French)
5.
On 28 August 2023, the Player signed a new employment contract with Czech club, MFK
Vyskov, valid as from the date of signature until 30 June 2025.
6.
Based on the Annexe to the new employment contract, the Claimant is entitled to
EUR 2,000 in the first season, as well as a sign-on fee of EUR 10,000.
7.
During the overlapping period, the Player earned EUR 30,000.
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REF. FPSD-14248
II. Proceedings before FIFA
8.
On 29 March 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
9.
The requests for relief of the Claimant were the following:
“1. To accept this claim.
2. To determine that the Employment Contract was unilaterally terminated by RFC
SERAING without just cause.
3. To issue a decision condemning RFC SERAING to pay a compensation for terminating
the contract without just cause that amounts of 125.140,00 EUR net (one hundred and
twenty five thousand and one hundred and forty euros)
4. To order RFC SERAING to assume the entirety of the FIFA DCR administration and
procedural fees, if any.”
10. The Claimant argued that the Respondent had no just cause to terminate the contract as
the alleged breaches never occurred and, in any event, the termination occurred without
any prior notice and did not constitute an ultima ratio measure.
11. In view of the above, the Claimant requested compensation in the amount of EUR 125,140,
broken-down as follows:
−
−
−
EUR 105,000 corresponding to the salaries between April 2023 – June 2024;
EUR 19,640, corresponding to sign-on fee for the 2023/2024 season;
EUR 500 as a loyalty bonus.
b. Position of the Respondent
12. Despite being invited to do so, the Respondent failed to reply to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the Single Judge) analysed whether she was competent to deal with the case at hand.
In this respect, she took note that the present matter was presented to FIFA on
29 March 2024 and submitted for decision on 29 May 2024. Taking into account the
wording of art. 34 of the March 2024dition 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.
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REF. FPSD-14248
14. Subsequently, the Single Judge 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 February 2024 edition), the Single Judge
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 Belgian club.
15. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (February 2024
edition) and considering that the present claim was lodged on 29 March 2024, the
February 2024 edition of said regulations (hereinafter the Regulations) is applicable to the
matter at hand as to the substance.
b. Burden of proof
16. The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which she 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. Her competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations she will refer only to the facts, arguments and documentary evidence,
which she considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
18. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that this is a claim of a Player against a Club concerning a
termination of the employment relationship. In this regard, the Single Judge acknowledged
the argumentation of the Claimant, asserting that the contract was terminated by the
Respondent without just cause, as the latter merely referred to alleged incidents, without
any prior notice.
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REF. FPSD-14248
19. The Single Judge also noted that the claim remained unanswered by the Respondent and
consequently, concluded that the “decision will be made based on the file” (art. 21 para. 1 of
the Procedural Rules).
20. In this context, the Single Judge acknowledged that her task was to establish the lawfulness
of the termination by the Respondent and recalled the content of art. 14 of the Regulations,
which provides that “a contract may be terminated by either party without consequences of
any kind (either payment of compensation or imposition of sporting sanctions) where there is
just cause”. In this respect, the Single Judge recalled that the definition of just cause and
whether just cause exists shall be established in accordance with the merits of each
particular case.
21. In this respect, and based on the longstanding and well-established jurisprudence of the
DRC, the Single Judge reiterated that only a breach or misconduct which is of a certain
severity justifies the termination of a contract, i.e. only when there are objective criteria
which do not reasonably permit to expect a continuation of the employment relationship
between the parties, a contract may be terminated prematurely. Hence, if there are more
lenient measures which can be taken in order for an employer to ensure the employee’s
fulfilment of his contractual duties, and vice versa, such measures must be taken before
terminating an employment contract. A premature termination of an employment contract
can only ever be an ultima ratio measure.
22. Recalling the facts of the case, namely that the termination was based on the allegations in
the termination notice and that it was served without any prior communication, the Single
Judge concluded that such termination cannot be considered an ultima ratio measure. For
the sake of completeness, the Single Judge remarked that the Respondent would have
been expected to warn the Player beforehand, as well as that the alleged breaches do not
occur to be severe enough to justify a termination of a contract.
23. In view of the above, the Single Judge decided that the Respondent terminated the contract
without just cause (art. 14 of the Regulations).
ii. Consequences
24. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
25. Firstly, the Single Judge observed that there was no outstanding remuneration at the time
of termination.
26. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the Player by the Club in the case at stake. In doing so, the Single
Judge 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
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REF. FPSD-14248
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
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.
27. In application of the relevant provision, the Single Judge held that she, first of all, had to
clarify as to whether the pertinent employment contract contained a provision by means
of which the Parties had beforehand agreed upon an amount of compensation payable by
the contractual parties in the event of breach of contract. In this regard, the Single Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
28. As a consequence, the Single Judge determined that the amount of compensation payable
by the Club to the Player had to be assessed in application of the other parameters set out
in art. 17 par. 1 of the Regulations. The Single Judge recalled that said provision provides
for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
29. Bearing in mind the foregoing as well as the claim of the Player, the Single Judge proceeded
with the calculation of the monies payable to the Player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Single Judge
concluded that the amount of EUR 100,268 (i.e. 3 salaries for the season 2022/2023
amounting to EUR 21,000 (EUR 7,000 times 3) plus 12 salaries for the season 2023/2024
amounting to EUR 67,200 (EUR 5,600 times 12) plus a sign-on fee for the season 2023/2024
of EUR 12,068) serves as the basis for the determination of the amount of compensation
for breach of contract. In this regard, the Single Judge based her calculation for the season
2023/2024 on the amounts stipulated for “championnat de D1 B” as the Claimant failed to
provide any evidence relating to participation in “championnat de D1 A”. Finally, the Single
Judge decided not to include loyalty bonus claimed by the Player as the relevant clause in
the contract was not specific enough and the Player failed to provide evidence to establish
the respective amount.
30. In continuation, the Single Judge verified as to whether the Player had signed an
employment contract with another club during the relevant period of time, by means of
which he would have been enabled to reduce his loss of income. According to the constant
practice of the DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration
under a new employment contract shall be taken into account in the calculation of the
amount of compensation for breach of contract in connection with the Player’s general
obligation to mitigate his damages.
31. Indeed, the Player found employment with MFK Vyskov. In accordance with the pertinent
employment contract, the Player was entitled to EUR 30,000 during the overlapping period.
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REF. FPSD-14248
Therefore, the Single Judge concluded that the Player mitigated his damages in the total
amount of EUR 30,000.
32. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the Club must pay the
amount of EUR 70,268 to the Player (i.e. EUR 100,268 net minus EUR 30,000), which was to
be considered a reasonable and justified amount of compensation for breach of contract
in the present matter.
33. Lastly, in accordance with the legal principle ne ultra petita, the Single Judge decided not to
award the Player interest on said compensation as the Claimant failed to request it.
iii. Compliance with monetary decisions
34. Finally, taking into account the applicable Regulations, the Single Judge 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
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
35. In this regard, the Single Judge highlighted that, against clubs, the consequence of the
failure to pay the relevant amounts in due time shall consist of a ban from registering any
new players, either nationally or internationally, up until the due amounts are paid. The
overall maximum duration of the registration ban shall be of up to three entire and
consecutive registration periods.
36. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must
pay the full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
37. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
38. The Single Judge 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.
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REF. FPSD-14248
d. Costs
39. Lastly, the Single Judge concluded her deliberations by rejecting any other requests for
relief made by any of the parties. The Single Judge 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 Single Judge
decided that no procedural costs were to be imposed on the Parties.
40. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
41. Lastly, the Single Judge concluded her deliberations by rejecting any other requests for
relief made by any of the Parties.
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REF. FPSD-14248
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Abdoulaye Sylla, is partially accepted.
2.
The Respondent, FC Seraing, must pay to the Claimant the following amount(s):
- EUR 70,268 as compensation for breach of contract without just cause.
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 banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
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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REF. FPSD-14248
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
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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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