F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 12 June 2020
Decision of the
DRC Judge
passed in Zurich, Switzerland, on 12 June 2020,
regarding an employment-related dispute concerning the player Tiegnou Valle Fatou
Coulibaly
BY:
Daan de Jong (Netherlands), DRC Judge
CLAIMANT:
TIEGNOU VALLE FATOU COULIBALY,
Ivory Coast
Represented by Mr Georgi Gradev
RESPONDENT:
PYRGOS LIMASSOL FC, Cyprus
Represented by Mrs Vasiliki Malta
I. FACTS OF THE CASE
1. On 1 August 2019, the Ivorian player Tiegnou Valle Fatou Coulibaly (hereinafter: the Claimant or the
player) and the Cypriot club, Pyrgos Limassol FC (hereinafter: the Respondent or the club) signed two
documents, an employment contract and a standard contract, valid from 1 August 2019 until 31 May
2021.
2. The employment contract reads, inter alia, as follows:
3. The Claimant maintained, that on 12 January 2020, the Respondent was defeated by its main rival,
Apollon Limassol by 6:0 losing the chance to become a champion of Cyprus in the 2019/2020 season.
4. Subsequently, on 15 January 2020, the Respondent sent an email to the Claimant´s agent stating: “I
would like to inform you that the board of Pyrgos FC after the last game take place at Sunday 12 of
January and the behaviour of the above two players in the 90 minutes of the game and after the end of
it, decide at first that the 2 players will be out of the team and that they don’t have place any more in
the team. Coach will give them today training programmed for the 2 of them. They will be training with
the 2nd team of the club. He will supervise the training of them at times and days different from the
team’s schedule”.
5. On the same date, the Claimant, via her players´ agent, replied to the Respondent requesting further
details since from said email was not clear “…what exactly happened in the match on January 12 for
which you separate the players and make them train with the second team…”. The Claimant added that
as of 15 January 2020, she was sent to train individually in violation to the part 1 of the standard contract
without any prior warning.
6. Moreover, the Claimant stated that on 31 January 2020 she requested the Respondent to reinstate her
with the first team, without success. The Claimant further explained that on 3 February 2020, the
Respondent sent a WhatsApp message to her agent offering the following termination offer: “1500 euro
for the rest of their contracts and terminate their agreements immediately – Tickets to return to Ivory
Coast.- And of course they will be paid the salary of January anyway (800 euro)…”. The Claimant
rejected said offer.
7. On 19 February 2020, the Claimant lodged a claim for breach of the contract against the Respondent
requesting from the latter a compensation amounting to EUR 12,636.17 plus an annual interest of 5% interest p.a. as of date of claim and until the date of effective payment. Said amount is composed as
follows:
- EUR 12,075.84 (EUR 862.56 x 14) as residual value of the contract, corresponding to 4 months
from 1 February to 31 May 2020 and 10 months from 1 August 2020 until 31 May 2021.
- EUR 560.33 to cover the damage of returning to her country, as per clause 1.5 of the contract.
8. Moreover, the Claimant requested the imposition of sanctions to the Respondent in accordance with art.
17.4 of the Regulations on the Status and Transfer of Players (hereinafter:RSTP) taking into account
that the contract was terminated during the protected period. In the alternative, the Claimant requested
FIFA to impose sanctions to the Respondent in accordance with art. 24bis of the RSTP.
9. Furthermore, the Claimant maintained that the Respondent suspended her from work in violation of her
right to personality and due process and that the termination offer is a clear evidence that the Respondent
was no longer interested in her services.
10. The Claimant added that on 13 February 2020, the Respondent informed the Claimant that the board
has decided to impose a fine of EUR 400 for her behaviour during the match of 12 January 2020 and
offered again a compensation of EUR 1,500 to terminate the contract. The Claimant rejected the fine
since it was groundless and claimed that her right to be heard was not respected. Parties continued
interchanging several emails and finally on 18 February 2020, the Claimant informed the Respondent
that it is clear that the club is refusing to perform its obligations and that the contract came to an end.
11. The Claimant deemed that “her exclusion form the team severely prejudiced her career development
decreasing her market value and leaving her unemployed until the next registration period. Bearing in
mind the Respondent attitude towards the Claimant, she could not reasonably be expected to carry on
the employment relationship. For the same reasons, the Clamant did not see any more lenient measures
which she could take to resolve the situation and to maintain the contractual relationship and for this
reason she did not send any additional warning to the Respondent”.
12. Therefore, the Claimant concluded that she had just cause to terminate the contract (cf. art. 14 of the
RSTP) and the Respondent is to be held liable for the early termination of the contract.
13. Despite having been invited to do so, the Respondent failed to reply to the claim.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
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 19 February 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 January 2020), he is competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between a player from
the Ivory Coast and a Cypriot 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 January 2020), and considering that the present claim was lodged
on 19 February 2020, the January 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.
5. First of all, the DRC judge recalled that, on 1 August 2019, the parties concluded an employment
contract as well as a standard contract, valid as of 1 August 2019 until 31 May 2021.
6. In continuation, the DRC judge noted that the Claimant lodged a claim against the Respondent
maintaining that she had terminated the contractual relationship with just cause 18 February 2019 since
the club sent her to train individually and tried to force her into an early termination of the contract.
Consequently, the Claimant asks to be awarded compensation for breach of contract as well as further
damages.
7. The Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having
been invited to do so. Consequently, the DRC judge deemed that the Respondent had renounced to its
right of defence and, thus, had accepted the allegations of the Claimant.
8. As a consequence of the aforementioned consideration, the DRC judge concurred that, in accordance
with art. 9 par. 3 of the Procedural Rules, a decision shall be taken upon the basis of the documents
already on file, in other words, upon the statements and documents presented by the Claimant.
9. Having said this, the DRC acknowledged that the central issue in the matter at stake was to determine
as to whether the contract was terminated by the Claimant with or without just cause and to decide on
the consequences thereof.
10. With the above in mind, the Chamber proceeded with an analysis of the circumstances surrounding the
present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3
of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged
fact shall carry the burden of proof.
11. In doing so, the DRC recalled that it has remained undisputed that the club sent the player to train
separately and subsequently alone due to unproven facts allegedly occurred during a match on 12
January 2020. What is more, the DRC judge noted that the Respondent tried to impose the early
termination of the contract with an offer for a mutual agreement and subsequent pressure by imposing
a fine without having respected her right to be heard.
12. Considering all the above, it appears that the Claimant terminated the contract on 18 February 2020 with
just cause in accordance with art. 14 par. 2 of the Regulations.
13. Subsequently, prior to establishing the consequences of the termination of the employment contract with
just cause by the Claimant in accordance with the Regulations, the DRC judge held that it, in general,
had to address the issue of unpaid remuneration at the moment when the contract was terminated by the
Claimant. In this context, the DRC judge noted that no outstanding remuneration was claimed by the
player.
14. Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that
the Claimant is entitled to receive compensation for breach of contract from the Respondent.
15. In continuation, the DRC judge focused its attention on the calculation of the amount of compensation
for breach of contract in the case at stake. In doing so, the members of 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 Claimant 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.
16. In application of the relevant provision, the DRC judge held that it first of all had to clarify as to whether
the pertinent employment contract contains 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 DRC judge established that no such compensation clause was included in
the employment contract at the basis of the matter at stake.
17. As a consequence, the members of the DRC judge determined that the amount of compensation payable
by the Respondent to the Claimant 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. Therefore, other objective criteria may be taken into account at the discretion of the deciding
body. In this regard, the DRC judge emphasised beforehand that each request for compensation for
contractual breach has to be assessed by the Chamber on a case-by-case basis taking into account all
specific circumstances of the respective matter.
18. The members of the DRC judge then turned their attention to the remuneration and other benefits due
to the Claimant under the existing contract and/or the new contract, which criterion was considered by
the Chamber to be essential. The members of the DRC judge deemed it important to emphasise that the
wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing
contract and the new contract, if any, in the calculation of the amount of compensation.
19. Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the monies payable to
the player under the terms of the employment contract as from the date of termination with just cause
by the Claimant until its natural expiration, bearing in mind that he would have received in total EUR
11,200 “net” as remuneration for the period as from February 2020 until May 2021. Consequently, the
DRC judge concluded that the amount of EUR 11,200 serves as the basis for the final determination of
the amount of compensation for breach of contract in the case at hand.
20. Moreover, the DRC judge decided to award the reimbursement of the flight ticket paid by the Claimant
to return to her home country, as per the DRC’s constant jurisprudence in the amount of EUR 560.33.
21. In continuation, the DRC judge verified as to whether the Claimant had signed an employment contract
with another club during the relevant period of time, by means of which she would have been enabled
to reduce her loss of income. According to the constant practice of the DRC, 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.
22. In this respect, the DRC judge noted that the Claimant remained unemployed during the relevant period.
23. Consequently, on account of the above-mentioned considerations, the DRC judge decided to partially
accept the Claimant’s claim and that the Respondent must pay the amount of EUR 11,760.33 net as
compensation for breach of contract to the Claimant, which is considered by the DRC judge to be a fair
and reasonable amount.
24. In addition, taking into consideration the player’s claim, the DRC judge decided to award the Claimant
interest at the rate of 5% p.a. as of the day after the termination of the contract with just cause, i.e. 19
February 2020, until the date of effective payment.
25. The DRC judge concluded its deliberations by rejecting any further claim of the Claimant.
26. Furthermore, taking into account the consideration under number II./3. above, the DRC judge referred
to par. 1 and 2 of art. 24bis 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.
27. In this regard, the DRC judge established that, in virtue of the aforementioned provision, it has
competence to impose a sanction on the Respondent. More in particular, the DRC judge pointed out
that, against clubs, the sanction shall consist in a ban from registering any new players, either nationally
or internationally, up until the due amount is paid and for the maximum duration of three entire and
consecutive registration periods.
28. Therefore, bearing in mind the above, the DRC judge decided that, in the event that the Respondent does
not pay the amount due to the Claimant within 45 days as from the moment in which the Claimant,
following the notification of the present decision, communicates the relevant bank details to the
Respondent, a ban from registering any new players, either nationally or internationally, for the
maximum duration of three entire and consecutive registration periods shall become effective on the
Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
29. Finally, the DRC judge recalled that the above-mentioned sanction will be lifted immediately and prior
to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the
Regulations.
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant, Tiegnou Valle Fatou Coulibaly, is partially accepted.
2. The Respondent has to pay to the Claimant the amount of EUR 11,760.33 net as compensation
for breach of contract, plus interest at the rate of 5% p.a. on said amount as from 19 February
2020 until the date of effective payment.
3. Any further claim lodged by the Claimant is rejected.
4. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the email
address as indicated on the cover letter of the present decision, of the relevant bank account
to which the Respondent must pay the amount plus interest mentioned under point 2. above.
5. The Respondent shall provide evidence of payment of the due amount plus interest in accordance
with point 2. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated into one of the
official FIFA languages (English, French, German, Spanish).
6. In the event that the amount plus interest due in accordance with point 2. above is not paid by the
Respondent within 45 days as from the notification by the Claimant of the relevant bank details to
the Respondent, the Respondent shall be banned from registering any new players, either
nationally or internationally, up until the due amount is paid and for the maximum duration of
three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status
and Transfer of Players).
7. The ban mentioned in point 6. above will be lifted immediately and prior to its complete serving,
once the due amount is paid.
8. In the event that the aforementioned sum plus interest is still not paid by the end of the ban of
three entire and consecutive registration periods, the present matter shall be submitted, upon
request, to FIFA’s Disciplinary Committee for consideration and a formal decision.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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