F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 14 October 2020

Decision of the

DRC Judge

passed on 14 October 2020,

regarding an employment-related dispute concerning the player Sedjro Paterne Counou

BY:

José Luis Andrade (Portugal), member

CLAIMANT / COUNTER-RESPONDENT:

Sedjro Paterne Counou, Benin

Represented by Mr. Pedro Macieirinha

RESPONDENT / COUNTER-CLAIMANT:

Al Merrikh Sport Club, Sudan

I. FACTS OF THE CASE

1. According to the player from Benin, Sedjro Paterne Counou (hereinafter: player or Claimant/Counter-Respondent), on an unknown date, the Sudanese club, Al Merrikh Sport Club (hereinafter: club or Respondent/Counter-Claimant) made the following offer to him:

2. According to the player, he accepted such offer and subsequently, on an unknown date the club sent a draft of an employment contract (hereinafter: draft) to him, valid as from 15 January 2020 until 14 January 2021.

3. According to the draft, the club undertook to pay the player a total amount of USD 55,000 as follows:

- USD 10,000 as “sign-on fee”;

- USD 10,000 “after 6 months”;

- USD 2,916 as monthly salary due at the end of each month.

4. On 10 May 2020, the player sent a letter to the Respondent, requesting payment of USD 55,000 as compensation for breach of contract within 15 days.

5. On 26 May 2020, the player lodged a claim against the Respondent in front of FIFA requesting payment of USD 55,000 as compensation for breach of contract plus 5% interest p.a. as of 10 May 2020.

6. In his arguments, the player maintained that the club “breached the Contract offer”, failed to provide him with the flight tickets and held that it refused to sign the draft.

7. In its reply to the claim, the club held that no contract has been concluded between the parties.

8. Moreover, the club stated that the player orally accepted the contract offer made by the Respondent. However, the player “has not signed the contract sent to him and returned it as agreed”.

9. The club added that the player received an official offer from the Jordanian Al-Hussein Sport Club. As result, the club could not “register a third foreign professional player according to SFA’s regulation”.

10. Finally, the respondent maintained that the player did not act in good faith as he did not tell the truth and that the player is currently registered with Al-Hussein Sport Club.

11. Furthermore, the club provided a copy of the player’s flight ticket issued on 11 December 2019, according to which the flight’s departure was scheduled on 6 July 2020.

12. To conclude, the club requested to reject the player’s claim and lodged a counterclaim, by means of which it requested USD 30,000 as “compensation”.

13. In his response to the counterclaim, the player reiterated his position and maintained that the club’s allegations are false.

14. The player explained that he received offers from others club before receiving the club’s proposal. However, the player alleged having accepted and returned the club’s offer.

15. The player stated that, as result, the club started the administrative procedures for his visa and flight tickets.

16. The player further sustained that he was supposed to travel to Sudan on 20 December 2020. However, the club only managed to get tickets for the 28th of December 2019. Moreover, the player held that the flight ticket was cancelled by the club and as a consequence he could not travel to Sudan and that the club, on 31 December 2019, sent a message to the player apologizing for what happened.

17. The player continued by stating that due to this issue he lost other offers from several clubs and later he received an offer from Al-Hussein Sport Club for 8 months. The player had no choice but to accept it, given that the Respondent rejected the contract signed by the player.

18. Finally the Claimant stated that the “compensation submitted by the Respondent Club shall be rejected.”

19. According to TMS, the player signed a contract with the Jordanian club Al Hussein, valid as from 1 February 2020 until the end of the season 2020, by means of which the club undertook to pay to the player the amount of USD 30,000, payable in 10 monthly salaries as from February 2020. Moreover, the player will receive USD 15,000 as sign-on fee.

II. CONSIDERATIONS OF THE DRC JUDGE

1. First of all, the Dispute Resolution Chamber judge (hereinafter also referred as DRC judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 26 May 2020. Consequently, the DRC judge concluded that the November 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition October 2020), he is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player and a club.

3. Furthermore, the DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Player (edition October 2020), and considering that the present claim was lodged on 26 May 2020, the March 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC judge emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand. In particular, the DRC judge recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS).

5. In continuation, the DRC judge took notice of the player’s Claim, alleging being entitled to compensation for breach of contract since the club refused to sign the draft. Further, the player held having accepted the offer made by the club.

6. The club, for its part, rejected the claim, maintained that no contractual relationship was concluded and lodged a counterclaim against the player.

7. Furthermore, DRC judge noted that the player rejected the club’s counterclaim.

8. In view of this dissent between the parties in respect of the basic question as to whether or not an employment contract between them had been concluded, the DRC judge firstly referred to art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. The application of the said principle in the present matter led the DRC judge to conclude that it was up to the player to prove that an employment contract, on the basis of which he claims compensation for breach of contract from the club, indeed existed.

9. Having stated the above, the DRC judge recalled that the player maintained that he had accepted the club’s offer, returned it to the club and then subsequently received the draft, which he allegedly signed as well and returned to the club. The club on the other hand stated that the player orally accepted the offer, but failed to return the draft.

10. In this regard, the DRC judge established that the player failed to submit any evidence that he indeed had signed the draft and returned it to club.

11. Having duly taken note of the documentation presented by the player, the DRC judge held that to be able to assume that the parties had indeed been bound through a contractual relationship with the terms as described by the draft, it had to be established, beyond doubt, by documentary evidence, that the said parties had indeed entered into a respective labour agreement, and, if so, under which terms. In general, the DRC judge held that he could not assume that an employment contract had been concluded by and between parties simply based on circumstances which, in general, may be likely but are not certain to indicate the signing of a contract. In addition, the DRC judge pointed out that he must be very careful with accepting documents, other than an actual employment contract, as evidence for the conclusion of a contractual relationship.

12. In respect of the foregoing, the DRC judge had to conclude that the documents presented by the player did not prove beyond doubt that the club and the player had validly entered into an employment contract.

13. As a consequence, the DRC judge decided that, since the player had not been able to prove beyond doubt that an employment contract had validly been concluded between himself and the club, there was no possibility for the Chamber to enter into the question whether or not such alleged employment contract had been breached.

14. All the above led the DRC judge to conclude that the claim of the player has to be rejected.

15. As to the club’s counterclaim, the DRC judge held that the club failed to establish the basis of the claim for breach of contract. Furthermore, he emphasised that the club itself argued that no contractual relationship was concluded and therefore, as established above, no contractual basis for such counterclaim exists.

16. On account of the above, the DRC decided to reject the club’s counterclaim.

III. DECISION OF THE DRC JUDGE

1. The claim of the Claimant/Counter-Respondent, Sedjro Paterne Counou, is rejected.

2. The counterclaim of the Respondent/Counter-Claimant, Al Merrikh Sport Club, is rejected.

For the DRC judge:

Emilio García Silvero

Chief Legal & Compliance Officer

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).

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