Labour Disputes
Texto da decisão
REF. FPSD-9900
Decision of the
Dispute Resolution Chamber
passed on 19 June 2023
regarding an employment-related dispute concerning the player Kouassi
Bernard Yao
COMPOSITION:
Clifford J. HENDEL (USA & France), Deputy Chairperson
Khalid AWAD ALTHEBITY (Saudi Arabia), Member
Alexandra GOMEZ BRUINEWOUD (Uruguay & the Netherlands), Member
CLAIMANT:
Kouassi Bernard Yao, Ivory Coast
Represented by Deep Ray
RESPONDENT:
TS Galaxy FC, South Africa
Represented by Eben Koen
pg. 2
REF. FPSD-9900
I. Facts of the case
1.
The relevant parties to this dispute are the Ivorian player, Kouassi Bernard Yao (hereinafter:
the player or the Claimant); and the South African club, TS Galaxy FC (hereinafter: the club
or the Respondent).
2.
Before the facts described below took place and in accordance with the information
available in the FIFA Transfer Matching System (TMS), the player was playing in India.
3.
On 27 December 2022, the club addressed the player a Letter of Invitation valid for one
month i.e., from 1 until 31 January 2023 (hereinafter: the Invitation).
4.
On 17 January 2023, the player and the club concluded a standard contract of the National
Soccer League (NSL) titled “Fixed Term Contract of Employment for Professional Footballers”
valid as from 1 January 2023 until 30 June 2025 with a possible extension for the 2025/2026
season (hereinafter: the NSL Contract).
5.
According to the Annexe A to the NSL Contract, the club undertook to pay the player the
following concepts:
6.
a.
USD 3,000 net as salary as from 1 February 2023 until 30 June 2024, payable by
the last day of each month;
b.
USD 3,300 net as salary for the 2024/2025 season, payable by the last day of each
month;
c.
USD 15,000 “for 10 league goals scored per season and [USD] 500 for every league
goals thereafter”;
d.
“match bonuses as per the club’s bonus structure”;
e.
“return air tickets to Ivory Coast per season”;
f.
“pay and assist [the player] with South African visas and work permit applications at
the cost of the Club”; and
g.
“furnished apartment for the duration of the Agreement”.
Clause 14 of the Annexe A of the NSL Contract reads as follows:
“The Parties further agree that the special nature of professional football and the need
for excellent relationships is such that if [the player] does not perform to the standards
desired by the club or is found guilty of any misconduct of any nature whatsoever
including ill-discipline or absenteeism, termination will be appropriate. Accordingly, in
pg. 3
REF. FPSD-9900
the event that the club terminates this Agreement in terms of this clause 14, the club will
pay [the player] compensation equal to a 1 (one) monthly salary, which [the player]
hereby accepts in full and final settlement of any and all claims of whatsoever nature he
might otherwise have had against the club consequence upon the termination of his
employment and the club will provide [the player] with this clearance certificate. In
particular, [the player] or any person on behalf of [the player] shall have no claim
arising out of any alleged unfair dismissal or unfair termination of employment, or unfair
labour practice, in terms of the Labour Relations Act 66 of 1995”.
7.
Clauses 16 and 17 of the Annexe A of the NSL Contract read as follows:
“16. This Agreement is subject to the fulfillment of the suspensive conditions that, on or
before 31 January 2023, [the player] is:
16.1. issued with the international clearance certificate by the relevant
international football association in the country in which he was last registered;
16.2. issued with the South African work permit by the South African Department
of Home Affairs as well as the international clearance certificate by the relevant
football regulatory body in terms of the FIFA Rules and Regulations.
17. Should the suspensive conditions referred to in clause 16 above not be fulfilled on or
before 31 January 2023 or such a later date as the club may agree, this Agreement shall
be of no force or effect”.
8.
According to the NSL Handbook, complimentary to the NSL Contract, the following
provisions apply as to the registrations of players:
“31.5. Save for Players whose registration is expressly permitted to take place outside of
the prescribed registration periods, players may only be registered during a registration
period, which periods are as follows:
31.5.1. The first registration period will be from 1 July until 31 August, provided that
in the event that the Season is extended by the Executive Committee beyond 30
June, then the aforesaid period will be from the first da after the end of the
extended Season until 31 August;
31.5.2. The second registration period will be the month of January;
31.5.3. Should the last day of the first or second registration period fall on a
Saturday, Sunday, or public holiday, the registration period will be extended to
include the next day and will end at midnight on the last da of the registration
period”.
pg. 4
REF. FPSD-9900
[...]
31.8. Save in respect of the last day of the registration period, when a Member Club
applies to register a Player it will submit the following items to the League during office
hours (between 08h30 and 17h00 on weekdays):
31.8.1. An original completed registration form signed by the Member Club and the
Player;
31.8.2. A certified and dated cop of the relevant page of the Player's passport or
identity document which has a clear photograph of the Player and the Player's
name;
31.8.3. A completed prescribed medical certificate signed by a medical practitioner;
31.8.4. 2 (Two) recent colour passport-sized photographs of the Player with the
Player's name on the back of each;
31.8.5. In cases where the Player is a professional:
31.8.5.1. 2 (two) copies of the Player's complete employment contract, with
the Member Club in separate sealed envelopes;
31.8.5.2. a cop of the front page of the Player's employment contract which
shows the start and end dates of the contract and an options to extend the
contract and must be signed in full by the Member Club, the Player and the
Player’s parent or legal guardian if the Player is a minor;
31.8.6. In cases where the Player was previously registered as an amateur a
clearance certificate from the Player's previous club or an order declaring the
Player a free agent;
31.8.7. In cases where the Player is not a South African citizen or permanent
resident proof that the Player is lawfully entitled to be employed in South Africa for
the full duration of the contract with the Member Club which is submitting the
registration. In cases where a work permit is not received before the closure of a
registration transfer period it will be sufficient to provide proof of application for
the work permit, but the Player’s card will only be issued and the Player will only
become eligible to play once the work permit has been received b the League;
31.8.8. In cases where a Player was previously registered for a club in another
country, an International Transfer Certificate;
pg. 5
REF. FPSD-9900
31.8.9. In addition, in cases where the Player was previously registered as a
professional with a Member Club, the following must be submitted to the League
where applicable:
31.8.9.1. In the event of a transfer, a cop of the written transfer agreement
and a clearance certificate; or
31.8.9.2. In the event of a loan, a cop of the written loan agreement and a
loan clearance certificate, or
31.8.9.3. In the event of a terminated or expired contract a clearance
certificate; or
31.8.9.4. An order declaring the Player a free agent.
31.9. Notwithstanding the aforegoing, on the last day of any registration period including
a CAF registration period a Member Club will be entitled to submit the items listed above
until midnight (24:00) on that day Member Clubs will furthermore be entitled, only on the
last day of a registration period, to submit copies of the items listed above by midnight
on the last da of the registration period and to deliver full compliant documents (as
specified above) to the League within a period of 3 (three) days thereafter, but the Players
card will only be issued and the Player will only become eligible to play once the
compliant documents have been received b the League. It will be misconduct on the part
of a Member Club to submit copies and then not deliver compliant documents”.
9.
On 27 January 2023, the player reached out to the club’s president and asked whether they
had already requested his International Transfer Certificate (ITC). In reply, the club
confirmed having acted accordingly.
10. Also on 31 January 2023, the All-Indian Football Federation (AIFF) wrote to the club and
stated inter alia as follows:
“We would like to inform you that the information provided by you for Mr. Yao Kouassui
Bernard is correct, but due to your registration period expiring on January 21, 2023, and
the player’s status with his former club being amateur, we are unable to deliver the ITC
of the player as the status of the player from amateur to professional can only change
in transfer window.
Therefore, you are requested to send an email to FIFA TMS requesting their intervention
in the matter and explaining the player’s entire situation to them.
Please get in touch with them, as they are the right people to contact regarding this
matter.
Please let us know in case anything needs to be done from our side”.
pg. 6
REF. FPSD-9900
11. According to the club, the transfer could not be properly concluded because the player
wrongly informed that he was registered at the time with the amateur Indian club, SC
Bengaluru. A copy of a release letter issued on 6 December 2022 was filed by the club and
was allegedly forwarded by the player.
12. Between 31 January and 2 February 2023, the player, the club, and the representatives of
South African Football Association (SAFA) and AIFF exchanged messages regarding the
issuance of the player’s ITC and the registration steps in the TMS.
13. In accordance with the information available in the TMS, on 1 February 2023:
•
the club entered a transfer instruction to engage the player permanently (TMS
ref. no. 641781). The player’s former club was the Indian amateur club, Muthoot
Football Academy;
•
the SAFA requested the player’s ITC from AIFF; and
•
FIFA informed the parties that there were “validation issues that need to be resolved
before the transfer can proceed” insofar as the player was “out of contract
transferring prior to the next registration period”.
14. On 4 February 2023, the AIFF acknowledged receipt of the correct information by the club
and SAFA, however informed that the ITC could not be issued due to the closure of the
registration period (i.e., the transfer window).
15. On 9 February 2023, the club’s president wrote the following message to the player: “Hello
Bernard, Njabulo our manager will arrange. However, I saw the email and they say no. So there’s
nothing else that can be done right now as the contract cannot start without the fifa ITC.
Unfortunately you have to return to Ivory Coast as soon as possible and will see at the end of
the season”.
16. In February 2023, the player and a club representative also exchanged messages via the
electronic application WhatsApp regarding the issue with his visa.
17. On 18 February 2023, the player informed the club via email that his visa expired on 5
February 2023; hence he would leave the country. Consequently, he requested the club to
(i) extend his work permit, (ii) register him, and (iii) send him his flight tickets to re-join the
team.
18. On 8 March 2023, the player put the club in default. Contextually, he recalled the problems
with the issuance of his visa and, in addition, requested payment of USD 6,000 (i.e., the
salaries of January and February 2023) within 10 days.
pg. 7
REF. FPSD-9900
19. On 24 March 2023, the player sent the club a reminder. He requested the club (i) to enable
him being “reinstated as soon as possible by providing him with flight tickets and work visa”;
and (ii) make payment of his outstanding salaries. He granted the club 5 additional days to
remedy its breaches.
20. On 30 March 2023, the player acknowledged that no reply had been received to that date.
Thus, he notified the club of the termination of the NSL Contract, claiming just cause.
21. Also on 30 March 2023, the club replied to the player and stated as follows: “Please be
advised that the agreement between [the club] and [the club] never took effective for failure of
the issuance of his International Clearance Certificate by 31 January 2023. Accordingly, your
purported notice of termination of the agreement is defective in law. This is [the club]’s position
which will be well articulated in the answers to your statement of claim”.
22. The player informed that he remained unemployed following the termination of the NSL
Contract.
II. Proceedings before FIFA
23. On 12 April 2023, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
24. In his claim, the player argued that he entered into a valid and binding contract with the
club, which should be duly enforced. In particular, he pointed out that the precedent
conditions included in clause 16 of the NSL Contract were not applicable per the wellestablished jurisprudence of the FIFA Dispute Resolution Chamber (DRC).
25. Given the above, the player alleged that the conduct of the club, failing to obtain his ITC
and register him, ultimately forced him to terminate the NSL Contract. In his words, “the
irresponsible behavior of the Club which had already caused much damage to the Player
professionally, financially, and mentally, forced him to seek the path of termination.”
26. Consequently, the player requested to be awarded the following amounts:
•
USD 9,000 as outstanding remuneration, corresponding to the salaries of January,
February, and March 2023 plus 5% interest p.a. as from the respective due dates;
•
USD 84.600 as compensation for breach of contract, plus 5% interest as from 1 April
2023.
pg. 8
REF. FPSD-9900
b. Position of the club
27. On 19 May 2023, the club filed its reply to the claim of the player.
28. In its reply, the club thoroughly explained the exchanges and unsuccessful attempt to
register the player in the TMS. In its view, the registration failed because the player was
indeed registered with Muthoot Football Academy and his name had been miswritten in
the system.
29. Consequently, the club alleged that the condition precedent could not be completed within
the deadline established in clause 16 of the NSL Contract, therefore it was “of no force or
effect”. The club highlighted that the contracts should be respected (pacta sunt servanda),
as well as referred to Swiss Law and the jurisprudence of FIFA and the Court of Arbitration
for Sport (CAS) in support of its argumentation.
30. In parallel, the club argued that the player, his previous clubs, SAFA and AIFF breached their
obligations and rendered the registration of the player impossible, as follows, quoted
verbatim:
“107.1 the Player advising the Respondent, incorrectly, that his last club was SC
Bengaluru;
107.2 the Player providing the Respondent with the Bengaluru Clearance, and advising
that that is the appropriate document the Respondent must use to acquire the Claimant’s
ITC;
107.3 the Player not advising the Respondent that he had been with Muthoot Football
Academy, nor that Muthoot had registered him on TMS;
107.4 the Player only advising the Respondent of Muthoot’s involvement in the facts at
00:20 on 1 February 2023, after the registration window and window to request the ITC
had closed;
107.5 SAFA not displaying the necessary diligence in only attempting to request the ITC
on 31 January 2023;
107.6 the AIFF not assisting the parties in obtaining the ITC and ensuring Muthoot’s
assistance;
107.7 the AIFF only responding to the Respondent and SAFA’s requests for assistance on
1 February 2023, after the registration window had closed;
107.8 the AIFF neglecting to inform the parties of Muthoot’s involvement; and
pg. 9
REF. FPSD-9900
107.9 Muthoot registering the Claimant under an incorrect name, leading to the
Respondent being unable to find him on TMS”.
31. The club concluded inter alia as follows, quoted verbatim:
“113 Notwithstanding the legal submissions supra, the Respondent wishes nevertheless
to respond to the factual version which the Claimant has put to the FT.
114 As to the Claimant’s status on arriving at the Respondent:
114.1 The Claimant avers that he had made the Respondent aware of his status as
an amateur, and that the Respondent no doubt had the means to conduct a due
diligence to identify what the Claimant’s actual status was;
114.2 The Respondent denies the Claimant’s averments. From the evidence supra
it is clear that the Respondent did do its due diligence in respect of ascertaining the
Claimant’s status. Not only was the Claimant entitled to, in good faith, rely on the
information provided by the Claimant, but the Respondent could not have
discovered the involvement of Muthoot Football Academy on TMS, as Muthoot
Football Academy has misspelt the Claimant’s name in registering him.
115 As to the provision of the Claimant’s Contract:
115.1 the Claimant avers that the Respondent – in bad faith – refused to provide
the Claimant with a copy of the Contract;
115.2 The Respondent denies this averment. Upon signature of the Contract, the
Respondent handed the Claimant a copy of the Contract.
116 As to the release letter from Muthoot Football Academy:
116.1 the Claimant avers that the Respondent, on 31 January 2023, requested the
Claimant to provide him with a release letter from his former club. The Claimant
avers that he then promptly obtained a release letter from Muthoot Football
Academy;
116.2 The Respondent denies this averment. The Respondent did not, on 31 January
2023, request a release letter from the Claimant. Rather, the Respondent requested
that the Claimant ensure that SC Bengaluru accept the TMS instruction. Further,
the Claimant did not “promptly” provide a release letter from Muthoot Football
Academy. As is evidenced from Exhibit 6, the Claimant only sent the release letter
after the closure of the registration window. Moreover, the Claimant could have –
at any time that he was with the Respondent – acquire this release letter. However,
pg. 10
REF. FPSD-9900
the Claimant chose to allow the Respondent to labour under the false impression
that SC Bengaluru was the Claimant’s previous club.
117 As to knowledge of Muthoot Football Academy:
117.1 the Claimant avers that the Respondent was aware that Muthoot Football
Academy was the Claimant’s previous club, and that the Respondent chose to
erroneously request an ITC from SC Bengaluru;
117.2 the Respondent denies these averments. As is evidenced in Exhibit 6, the
Respondent only became aware of Muthoot Football Academy at 00:20 on 1
February 2023. Moreover, the Respondent lodged its documents on TMS on 25
January 2023. At that stage, the Respondent did not even know that Muthoot
Football Academy was involved”.
32. Based on all the abovementioned considerations, the requests for relief of the club were
as follows, quoted verbatim:
“123.1 dismiss this case for lack of a legal basis;
123.2 order that the Contract never came into force and effect due to the suspensive
conditions underpinning same being unfulfilled; and
123.3 order that the Contract was not breached and/or terminated by either Party.
123.4 Order that the Claimant pays the Respondent’s costs.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
33. First of all, the DRC (hereinafter also referred to as 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 12 April 2023 and submitted for decision on 19 June 2023.
Taking into account the wording of art. 34 of the March 2023 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.
34. 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 (May 2023 edition), the DRC is
competent to deal with the matter at stake, which concerns an employment-related
pg. 11
REF. FPSD-9900
dispute with an international dimension between an Ivorian player and a South African
club.
35. 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 12 April 2023, the October 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
36. 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 TMS.
c. Merits of the dispute
37. 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
38. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that it consists of a claim for breach of contract lodged by
the player against the club in connection with the employment relationship previously
maintained between them.
39. In this context, the Chamber was duly observant that the following facts remained
undisputed between the parties:
•
on 17 January 2023, the parties concluded the NSL Contract;
•
both SAFA’s and NSL’s registration periods ended on 31 January 2023;
•
the player could not be registered within the abovementioned deadline;
pg. 12
REF. FPSD-9900
•
the club’s president informed the player via WhatsApp that, due to the lack of
registration, the NSL Contract could not come into effect;
•
on 18 February 2023, the player left South Africa due to issues with his visa; and
•
on 30 March 2023 and after having put the club in default on 8 and 24 March
2023, the player officially terminated the NSL Contract claiming just cause.
40. Against this background, the DRC acknowledged that its task is to determine the following:
a. Provided that the player could not be registered within 31 January 2023, did the
NSL Contract enter into force?
b. If affirmative, was the NSL Contract terminated with just cause?
c. What are the consequences that follow?
41. The Chamber moved then to the analysis of each topic in turn.
a.
Did the NSL Contract enter into force?
42. As a departure point, DRC acknowledged that the parties strongly dispute whether the NSL
Contract indeed entered into force considering that the player was never registered with
the club.
43. The NSL Contract included conditions precedent establishing that its validity was subject
to the issuance of (i) the player’s ITC i.e., the registration of the player with the club; and (ii)
a South African work permit. For ease of reference:
“16. This Agreement is subject to the fulfillment of the suspensive conditions that, on or
before 31 January 2023, [the player] is:
16.1. issued with the international clearance certificate by the relevant
international football association in the country in which he was last registered;
16.2. issued with the South African work permit by the South African Department
of Home Affairs as well as the international clearance certificate by the relevant
football regulatory body in terms of the FIFA Rules and Regulations.
17. Should the suspensive conditions referred to in clause 16 above not be fulfilled on or
before 31 January 2023 or such a later date as the club may agree, this Agreement shall
be of no force or effect”.
pg. 13
REF. FPSD-9900
44. While considering the above, the Chamber initially recalled art. 18 par. 4 of the Regulations
which sets forth: “The validity of a contract may not be made subject to a successful medical
examination and/or the grant of a work permit”. In addition, it highlighted that the
Commentary to the FIFA RSTP (p. 201) reads inter alia as follows in this respect:
“If the parties sign the contract without having confirmed that any work permit or visa
will be granted, and if the competent authorities then refuse to grant the necessary
authorisations, the contract will be considered valid and binding, and if it is terminated
by the club because of the state authorities refusal, the termination will be deemed to
have been without just cause. Any provision to the contrary included in the contract
(e.g. a clause making the issue of a work permit or visa a condition precedent) will
be deemed invalid; the contract as a whole will remain valid” (emphasis added).
45. Along the same lines, the Chamber recalled that its jurisprudence is also solid to establish
that the validity of an employment contract cannot be made conditional upon the
execution of (administrative) formalities, such as, but not limited to, the registration
procedure in connection with the international transfer of a player, which are of the sole
responsibility of a club and upon which a player has no influence. As the club is supposedly
interested in acquiring the rights of the player and in benefiting from his services, it is also
expected to act accordingly and execute the administrative formalities in view of obtaining,
for instance, the player’s ITC and his subsequent registration with the engaging member
association. Consequently, the Chamber determined that the registration or not of the
player with the relevant member association does not exempt the club of complying with
the financial terms of the contract.
46. On this note, the DRC concluded that:
•
conditioning the NSL Contract to the issuance of the South African work permit
is contra legem, hence such provision is null and void; and
•
as to the issuance of the ITC, it is the obligation of the club to ensure that all
administrative formalities were met for the player to be able to play, as per the
relevant employment contract (i.e., the NSL Contract). In other words, it is the
club’s responsibility to fulfil all administrative tasks to obtain the player’s ITC and
allow his registration with the new member association within the corresponding
registration window. This conclusion is without prejudice of the assessment as to
the justice of a subsequent termination of a contract based on the nonregistration and the responsibility of the parties therein involved (i.e., the player,
the club(s), and the relevant federations).
47. In light of the above, the Chamber considered that the NSL Contract includes all the
essentialia negotii and constitutes a valid and binding contract to the parties. Likewise, in
line with the Regulations and the well-established jurisprudence of the DRC, such validity
pg. 14
REF. FPSD-9900
cannot be hindered by the conditions precedent listed in its clause 16 insofar as they go
against the spirit of the regulations and, in particular, the principle of contractual stability.
48. Therefore, the DRC decided that clauses 16 and 17 of the NSL Contract shall be deemed
null and void, and the argumentation of the club in this regard was rejected.
b.
If affirmative, was the NSL Contract terminated with just cause?
49. Having established that the NSL Contract was valid and binding to the parties, the Chamber
turned to the issue of the termination and the just cause.
50. In this context, the DRC found it decisive that:
•
the player proactively reached out to the club within January 2023 in order to
obtain information as to his registration;
•
despite having signed the NSL Contract on 17 January 2023, the evidence on file
shows that the club only initiated the communication and administrative
proceedings to engage the player and obtain his ITC on the last day of the
registration period (i.e., 31 January 2023);
•
whereas the club accused the player of providing untrue information regarding
his previous employer, the club did not advance any proof of his alleged bad faith
and/or of having requested any type of clarification to the player. On the contrary,
the club filed copies of emails exchanged with previous clubs of the player and
the federations (i.e., AIFF and SAFA) when the deadline for registration was soonto-expire or even after it was finished;
•
upon being informed that the player could not be registered because of the
closure of the registration period, the president of the club expressly informed
him that the NSL Contract was not valid, hence suggested that the club would not
pursue their employment relationship. In addition to such confirmation via
WhatsApp, the lack of intention by the club to retain the player’s services was also
corroborated by the facts that (i) it failed to provide further guidance to the player
and limited itself to argue that the NSL Contract had no legal effect; (ii) it failed to
assist the player with his visa’s issue and concurred with his departure from the
country; (iii) it did not make any payment to the player; (iv) it failed to reply to the
player’s default notices dated 8 and 24 March 2023; and (v) it did not advance any
proof of having tried to reach an amicable solution with the player and – to some
degree – try to mitigate the damages of a 30 month’s contract.
51. Against this background, the Chamber deemed that the behaviour of the club towards the
player could generate the legitimate expectation that it would not honour its contractual
duties per the NSL Contract. In particular, the DRC considered that the message sent by
pg. 15
REF. FPSD-9900
the club’s president to the player on 9 February 2023 could already be interpreted as a
premature termination, which was subsequently confirmed by the player via termination
notice dated 30 March 2023.
52. In parallel, while analysing the issue of the registration per se, the Chamber was not
convinced by the position of the club in the sense that it was a “victim” of system and not
the one to blame for the failure of registration. In the DRC’s view, by only initiating the
administrative proceeding for registration of the player on the last date of the deadline (i.e.,
31 January 2023), the club assumed a high risk that cannot be, at the current stage, held
against the player. As such and irrespective of any inconsistencies that could potentially be
attributable to the other parties in the context of the registration process, the Chamber
deemed that the club was not diligent enough and shall then be liable to the consequences
that follow.
53. In conclusion and while considering the particularities of the case at hand, the DRC decided
that the NSL Contract was terminated with just cause by the player on 30 March 2023.
c.
What are the consequences that follow?
54. In continuation, the Chamber turned its attention to the question of the consequences of
such unjustified breach of contract committed by the club.
55. As a departure point, the DRC determined that the club shall be liable to pay to the player
the amounts which were outstanding under the NSL Contract at the moment of the
termination based on general legal principle of pacta sunt servanda. In particular, the DRC
decided that such amount corresponds to his salaries from January until March 2023.
56. In addition, taking into consideration the player’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award him interest at the rate of 5%
p.a. on the outstanding amounts as from (i) 1 February 2023 and 1 March 2023 for the
salaries of January and February 2023, respectively; and (ii) the date of termination for the
salary of March 2023; all until the date of effective payment.
57. Having stated the above, the Chamber 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
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
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.
pg. 16
REF. FPSD-9900
58. In application of the relevant provision, the Chamber held that it 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.
59. In this regard, the Chamber recalled the wording of clause 14 of the NSL Contract, which
could be read as a compensation clause, as follows:
“The Parties further agree that the special nature of professional football and the need
for excellent relationships is such that if [the player] does not perform to the standards
desired by the club or is found guilty of any misconduct of any nature whatsoever
including ill-discipline or absenteeism, termination will be appropriate. Accordingly, in
the event that the club terminates this Agreement in terms of this clause 14, the club will
pay [the player] compensation equal to a 1 (one) monthly salary, which [the player]
hereby accepts in full and final settlement of any and all claims of whatsoever nature he
might otherwise have had against the club consequence upon the termination of his
employment and the club will provide [the player] with this clearance certificate. In
particular, [the player] or any person on behalf of [the player] shall have no claim
arising out of any alleged unfair dismissal or unfair termination of employment, or unfair
labour practice, in terms of the Labour Relations Act 66 of 1995”.
60. Notwithstanding the above, the DRC deemed that such provision is neither reciprocal nor
proportionate in line with the jurisprudence of the DRC, hence was rendered set aside. As
a consequence, the members of the Chamber 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 Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
61. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the NSL
Contract from the date of its unilateral termination until its end date. Consequently, the
Chamber concluded that the amount of USD 84,600 net (i.e., 15 months * USD 3,000 plus
12 months * USD 3,300) serves as the basis for the determination of the amount of
compensation for breach of contract.
62. In continuation, the Chamber 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.
pg. 17
REF. FPSD-9900
63. In casu, the player could not find a new employment following the termination of the NSL
Contract, hence was not able to mitigate his damages.
64. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of USD 84,600
net to the player, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
65. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of the date of termination (i.e., 30 March 2023) until
the date of effective payment.
ii. Compliance with monetary decisions
66. Finally, taking into account the applicable Regulations, the Chamber 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.
67. In this regard, the DRC 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.
68. Therefore, bearing in mind the above, the DRC decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification of
the decision, failing which, at the request of the player, 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 club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
69. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
70. The DRC 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.
pg. 18
REF. FPSD-9900
d. Costs
71. 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.
72. 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.
73. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 19
REF. FPSD-9900
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Kouassi Bernard Yao, is partially accepted.
2.
The Respondent, TS Galaxy FC, must pay to the Claimant the following amount(s):
- USD 3,000 net as outstanding remuneration plus 5% interest p.a. as from 1 February
2023 until the date of effective payment;
- USD 3,000 net as outstanding remuneration plus 5% interest p.a. as from 1 March 2023
until the date of effective payment;
- USD 3,000 net as outstanding remuneration plus 5% interest p.a. as from 30 March
2023 until the date of effective payment; and
- USD 84,600 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 30 March 2023 until the date of effective payment.
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.
pg. 20
REF. FPSD-9900
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
pg. 21
REF. FPSD-9900
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
pg. 22