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 8 October 2020

Decision of the

Dispute Resolution Chamber

Passed on 8 October 2020,

regarding a contractual dispute concerning the player Kouassi Gervais Yao

BY:

Geoff Thompson (England), Chairman Stéphane Burchkalter (France), member Joseph Antoine Bell (Cameroon), member

CLAIMANT / COUNTER-RESPONDENT:

AL SADD SC, Qatar

Represented by ATFIELD

RESPONDENT 1 / COUNTER-CLAIMANT:

KOUASSI GERVAIS YAO, Côte d'Ivoire

Represented by Mr Marcos Motta

RESPONDENT 2:

PARMA CALCIO 1913, Italy

Represented by Studio E.L.S.A.

I. FACTS OF THE CASE

1. According to Al Sadd Sports Club (hereinafter: Al Sadd or the Claimant), during the month of January 2020, the parties were negotiating the conditions of both: 1) the agreement regarding the definitive transfer of the player, Mr Gervais Yao Kouassi (hereinafter: the player) from Parma Calcio 1913 (hereinafter: Parma or the Respondent club) to Al Sadd Sports; and 2) the employment contract between Al Sadd and the player.

2. In accordance with the statements brought by Al Sadd, the transfer window in Qatar closed on 1 February 2020 at 00:00 am.

3. In this context, Al Sadd stated that, after many discussions regarding the conditions of the transfer agreement, Parma sent the final signed version of the transfer agreement to Al Sadd on 31 January 2020 at 23:49 hours.

4. In the said transfer agreement, Al Sadd and Parma agreed, inter alia, upon the following

clauses:

“[Al Sadd] shall pay to [Parma] the gross amount as follows: For a definitive transfer: Total amount = 4,500,000 Euros […]”;

“The validity of the present contract is strictly related to an issuance of the International Transfer Certificate (ITC) by the Football Association of [Parma] in favour of the Football Association of [Al Sadd]. [Parma] shall co-operate with its Football Association to issue the relevant ITC in favour of the Football Association of [Al Sadd].

5. Furthermore, Al Sadd explained that, also after many discussions concerning the conditions of the contract, the player sent to Al Sadd the signed final version of the employment contract on 1 February 2020 at 00:02 am. In the contract, the Claimant and the Respondent player agreed as follows, regarding the duration of the contract: “1. This Contract begins on 01/01/2020 and terminates on 31/12/2021 (day/month/year). 2. The validity of this Contract is subject to the specific approval of the QFA and the confirmation that the Player is eligible to play (ratification of the Contract)”.

6. As to the remuneration payable to the player, the parties agreed that the latter would be entitled to a monthly salary of EUR 250,000 during the whole duration of the contract.

7. Clause 10 of the contract stipulated, inter alia, the following: “If the Player terminates the Contract without having just cause, the Player shall pay to the Club compensation equal to the total amount of 50,000,000 EURO”.

8. On 27 March 2020, Al Sadd lodged a claim against the player and Parma before FIFA, with the following requests:

1.) Compensation for breach of contract in the amount of EUR 50,000,000, plus 5% interest p.a. as from 1 February 2020 until the date of effective payment, corresponding to the amount payable by the player to Al Sadd as per clause X.5 of the contract (hereinafter: the compensation clause). In addition, the Claimant requested that both, the player and Parma, shall be jointly and severally liable for the payment of such amount. Furthermore, the Claimant requested the imposition of sporting sanctions on the player and Parma and them to be ordered to pay the corresponding procedural costs.

2.) Subsidiary, the Claimant requested to be awarded compensation for breach of contract: EUR 20,000,000 plus 5% interest p.a. as from 1 February 2020 until the date of effective payment, should the DRC determine that the amount of EUR 50,000,000 is excessive. In addition, the Claimant requested that both, the player and Parma, shall be jointly and severally liable for the payment of such amount. Furthermore, the Claimant requested the imposition of sporting sanctions on the player and Parma and them to be ordered to pay the corresponding procedural costs.

3.) Subsidiary to the above, the Claimant requested compensation for breach of contract in the amount of EUR 5,446,100 plus 5% interest p.a. as from 1 February 2020 until the date of effective payment, broken down by the Claimant as follows:

 EUR 16,100 corresponding to flight tickets and hotel expenses incurred by Al Sadd when negotiation the transfer of the player (note: document on file);

 EUR 5,430,000 as compensation for breach of contract, calculated by Al Sadd as explained in point 9 below;

 The player and Parma be found jointly and severally liable for the payment of such amount;

 Procedural costs to be paid by the player and Parma.

9. Regarding the calculation of the amount of EUR 5,430,000, Al Sadd argued that, to replace the player, it had to enter into a contract with a player “who could be registered outside the registration period”, i.e. Mr Marco Fabián, to whom Al Sadd referred as a player of “lower quality” than the player. In this context, Al Sadd explained that the loss suffered consists of “the difference between the value of the player and the value of Marco Fabián”. In this regard, Al Sadd argued that it offered the player a salary of EUR 6,000,000 for the whole term of the contract, which consisted of 24 months; whereas the club entered into a contract with Marco Fabián for 6 months, being EUR 570,000 the value of the contract with said player (EUR 6,000,000 – EUR 570,000 = EUR 5,430,000).

10. In his claim, Al Sadd explained that the transfer agreement concluded with Parma for the definitive transfer of the player is invalid. In this sense, the Claimant argued that even though the agreement was signed by the parties, its validity was subject to the issuance of the corresponding ITC by the Italian FA (cf. see clause 6 of the transfer agreement), which did not occur, since Parma failed to send the signed transfer agreement before the closure of the transfer window in Qatar. Thus, according to Al Sadd, the ITC could not be requested by the Qatari FA and, hence, could not be issued by the Italian FA, due to Parma’s failure to remit the signed transfer agreement on time.

11. Hence, according to the Claimant, the transfer agreement is not valid and no amounts shall be paid by Al Sadd to Parma as per said agreement. In addition, the Claimant stressed that “it is clear that Parma’s dilatory attitude constitutes a blatant breach of this commitment to cooperate to the issuance of the ITC”.

12. However, Al Sadd argued that, despite the transfer agreement not being binding upon the parties, the employment contract concluded with the player is valid and binding, as its validity is not subject to the transfer agreement of the club involved being performed, unless so stipulated. In this respect, Al Sadd held that it concluded a valid employment contract with the player, whose validity –contrary to the transfer agreement– was not subject to the issuance of the relevant ITC.

13. In this context, Al Sadd explained that, upon the signing of the transfer agreement, Parma put Al Sadd in default of payment of the transfer fee, granting the latter a deadline until 16 February 2020 to proceed with the corresponding payment. In this respect, Al Sadd argued that Parma, despite having granted it a deadline until 16 February 2020 to pay all amounts due as per the transfer agreement, announced on 15 February 2020 that the player had re-joined Parma and would start playing in official matches for it.

14. Al Sadd explained that, less than a week after signing the employment contract, on 8 February 2020, the player was already back with Parma, and that, by doing so, the player breached the contract concluded between him and Al Sadd on 31 January 2020M; and, hence, both, the player and Parma, shall be severally and jointly liable to pay compensation to Al Sadd as per art. 17 of the RSTP.

15. On 27 May 2020, the player replied to the claim of Al Sadd, fully rejecting it, and lodged a counterclaim against said club.

16. In his reply, the player explained that the “The present matter relates to the transfer of a football player, which had been agreed by all the parties and which was finally not executed because of the fault of the prospect new club of the player, who failed to take all actions required to duly submit the relevant documentation in time from its side. […] The Claim is ill-founded to say the least”.

17. In this respect, the player points out that Al Sadd, while claiming that the transfer agreement is not valid, as the conditions precedent were not fulfilled -one of which is the acceptance of the player to be transferred–, also deems that the employment contract is valid, based on the exact opposite argument that all essential conditions are met. The player deems that Al Sadd, as such, violates the principle of contra factum proprium non venit.

18. Furthermore the player claims that the present labour claim was only lodged as a means to reach Parma without having to pay any procedural costs, as they would be due in a club v. club claim.

19. In this respect, the player stated that “the Claim of Al Sadd also leads to sporting and economic distress on the side of the Player and violates his freedom to choose an occupation, protected by art. 27 para. 2 of the Swiss Federal Constitution. The Player therefore points out that the Claim is so groundless to amount to a vexatious litigation (“lite téméraire”). The Claimant is acting in bad faith not only towards the Player and Parma but also towards FIFA itself. The resources of the department of the FIFA Players’ Status Committee are, particularly during this critical period of time, precious and limited and they shall not be – particularly in cost-free proceedings - misused by a party which pursues in reality objectives different from those upon which it (falsely) relies on its claim”.

20. For this reason, the player’s “primary request in relation to the Claim is that the latter is not dealt with since there is not a “legitimate reason” to do it in the sense of art. 5 para. 4 of the Procedural Rules”.

21. The player deems that the employment contract is invalid and deems that Al Sadd breached art. 152 of the Swiss Code of Obligations (CO), by failing to take the actions required to safeguard the fulfilment of the condition precedent included in the employment contract, related to the homologation of such contract and the registration of the player with the Qatari FA (QFA), which are in accordance with the Chamber’s well-established jurisprudence an exclusive responsibility of the club. In case the contract is considered valid, the player deems

that Al Sadd breached it first.

22. In particular, the player claims that Al Sadd failed to “(i) answer to the legitimate inquires and requests of Parma and the Player, (ii) register him; and, if the contract was valid, failed to (iii) pay him, (iv) provide him with a working visa, (v) insure him and (vi) organize the required medical exam, it is Gervinho who has a valid reason to complain against its counterparty.

23. The player made a very detailed chronological description of the facts preceding the signature of the employment contract and in essence states that Al Sadd failed to properly and timely react to his requests to modify a few clauses of the contract, namely the Jurisdiction Clause, the Abusive Penalty Clause and the Injury Clause. In four different occasions the player, together with his agent and his lawyer at the time made this clear to Al Sadd (Exhibits 17, 23, 25, 27, 29 & 30).

24. However, according to the player, only at 21:36 of 31 January 2020 Al Sadd sent the player the final version of the contract “(which Al Sadd does not enclose to its Claim) different from all previous versions, which was not in the Player’s possession” (Exhibit 28).

25. The final version of the contract had the “the Injury Clause” removed as per the player’s several requests, but left the remaining clauses unchanged. It also contained a condition precedent according to which its validity would be subject to “the specific approval of the QFA and the confirmation that the Player is eligible to play” (the “Employment Condition Precedent”, Article IX para 2 of the Employment Contract).

26. The player claims that, at that point, due to Al Sadd’s inexplicable delays in reacting to all his previous requests to adapt the aforementioned clauses in the contract, he was left with a few minutes to download the file, read the contract, agree to it, sign it, scan it and send it back to Al Sadd.

27. The player further explained that he also signed the transfer agreement between Al Sadd and Parma (the “Transfer Agreement” – Exhibit 31) to express his agreement to the “contents of the present Contract” and consequently accept to be “transferred from the Former Club to the New Club”.

28. At 21.56 the player provided Al Sadd with the signed proof of his acceptance of the Employment Contract, both via direct e-mail (Exhibit 32) as well as via WhatsApp via Mr Dembele (Exhibit 29) and at 22:00 the Player sent a full copy of the Employment Contract signed (Exhibit33). Only at 22.09 Al Sadd uploaded the employment contract in TMS and entered its matching counter instruction - that is - after the closure of the Qatar registration period (Exhibit 34).

29. According to the player, in spite of having been advised by Parma to contact FIFA through the QFA and refer to the validation exception, Al Sadd did not act accordingly and never contacted the Player again.

30. Furthermore, on 3 February 2020 Al Sadd officially announced having signed the Mexican player Marco Fabian as its fifth foreign player (Exhibit 35), reaching the maximum quota.

31. On 7 February 2020, Parma specifically requested Al Sadd to, inter alia, confirm that it will execute the transfer agreement concluded between the parties (Exhibit 11).

32. On 13 February 2020, Parma therefore once more requested Al Sadd to provide the former with an answer to its request, including, inter alia, that of executing the transfer agreement, informing that otherwise it would consider the Qatari club to be in breach of contract and the player would go back to “play for Parma Calcio” (Exhibit 12).

33. On 14 February 2020, the previous counsel of Al Sadd wrote to the player informing him, inter alia, that the Transfer Agreement between the clubs would have been “void ab initio” and that the Parties thus returned to the “status quo” (Exhibit 36).

34. On 15 February 2020 the Player resumed activities with Parma, according to his original employment contract, and on 16 February 2020, he played an official match with Parma.

35. On 19 February 2020, the current counsels of Al Sadd (lodging the present claim) sent another letter stating that the transfer agreement “never entered into force” and “no valid employment agreement was concluded between the Player and Al Sadd Football Club” (Exhibit 8). Literally, Al Sadd stated: “Furthermore, no valid employment contract was concluded between the Player and Al Sadd Football Club as the validity of said agreement was subject to the approval by the QFA, which was never given. Therefore, the second condition precedent is not met either”.

36. On 22 April 2020, after more than three months without having heard from the club, the player received from FIFA a claim lodged by Al Sadd. The player claims to have been surprised to receive the claim since Al Sadd had previously recognized that the Employment Contract was subject to a condition precedent (Exhibits 8 & 36). Furthermore, the player argued that he had never received from Al Sadd any direction or instruction regarding his alleged employment, nor a warning about any of his purported contractual breaches.

37. The player points out that Al Sadd does not explain how it could have entered into an employment contract with the Player without a valid transfer agreement, since this would imply that the Player would have breached his employment contract with Parma first, with the inducement of Al Sadd.

38. The player denies having breached the employment contract, if considered valid, and states that his pre-contractual conduct cannot be reproached either. According to the player, the club, on the contrary, with its reckless behaviour hindered the conclusion of the conditions precedent to the contract and, in the alternative, if the contract is considered valid at all, Al Sadd breached its terms because of its actions and omissions following the signature. Therefore, the player deems that Al Sadd should pay to him an amount of compensation.

39. The player also referred to art. 8.2 par. 1 of Annexe 3 to the RSTP, related to “Creating an ITC for a player”, which stipulates that the new club, when entering the relevant data, “shall upload (..) a copy of the contract between the new club and the professional player, if applicable”. In this respect, he emphasises that “the registration procedure in connection with the international transfer of a player (..) are of the sole responsibility of a club and on which a player has no influence”. Therefore, players have no obligations related to their registration with national associations or any TMS procedures.

40. The player agrees with Al Sadd that, in principle, the validity of transfer agreements and employment contracts may be assessed independently, and that it is possible that one is valid and binding and the other not, or vice versa. However, while this might be true in principle, this is not what the parties agreed and stipulated in the present case.

41. Pursuant to clauses 667, 768 and 869 of the Transfer Agreement the “validity” of the latter was conditioned to (i) the Player accepting to be transferred to Al Sadd; (ii) the signature of an employment contract between Al Sadd and the Player; (iii) the issuance of the ITC from the FIGC to the QFA; (iv) the Player passing a medical check-up at the Aspetar hospital.

42. Swiss law allows parties to make the validity of a contract subject to the fulfilment of one or more conditions. According to Article 151(1) of the Swiss Code of Obligations (hereinafter “CO”), a contract “is conditional if its binding nature is made dependent on the occurrence of an event that is not certain to happen”.

43. By the same token, the validity of the Employment Contract was conditioned to (i) the “specific approval of the QFA” and (ii) “the confirmation that the Player is eligible to play (ratification of the Contract)”; conditions that necessarily require that an ITC is granted in favour of the QFA and that a transfer agreement between Parma and Al Sadd is previously concluded.

44. According to the player, Al Sadd is thus manifestly acting in bad-faith and violating the general legal principle of contra factum proprium non venit and of legitimate expectation when it first “drafts, sends, accepts, signs and uploads into the TMS contracts subject to the Transfer Conditions Precedent and the Employment Condition Precedent; second (after having failed to comply with such conditions) it claims that such contracts are not valid because of those very same conditions (Exhibits 8 & 36); third, it files a claim against the counter-parties to those contracts alleging that they breached (or induced to breach of) the contract since the conditions precedent were not valid (the Claim)”.

45. The player indeed agrees in the sense that the contract contained all the essentialia negotii. The Player further notes, as a threshold matter, that the argument of the alleged invalidity of the Employment Condition Precedent would, if accepted, clearly speak against Al Sadd, rather than in its favour: if the contract was immediately valid, indeed, Al Sadd, and not the Player, breached it first.

46. The player explains that “Registering a player with a federation to play with a club is a club’s fundamental obligation in the first place. Failure to register, or de-registration of a player, constitutes just cause for a Player to terminate his contract with a club. Furthermore, the Club also failed to obtain the Player’s working visa. Failing this the Player could simply not have put himself at the club disposal. The Club also failed to arrange the Player’s medical exam – without which the Player may not safely exercise his profession. This goes against the obligations of Al Sadd as an employer under articles 328 par. 176 and 328 par. 277 of the Swiss CO. If this was not enough, if the Employment Contract was valid and binding, Al Sadd failed to pay Gervinho the amount of EUR 250,000.00 on the 31 January 2020”.

47. Within this context, the player claims that, in accordance with art. 82 of the Swiss Code of Obligations and the fundamental legal principle of inadimplenti non est adimplendum, Al Sadd could have not demanded from the player the performance of his obligations before having complied with its own – “also reminding that the medical exam, working visa, insurance and registration are pre-conditions for a player to be able to exercise his profession”.

48. In this respect, the player claims that it is possible to make the validity of an employment contract subject to the prior fulfilment of certain conditions precedent and “this is actually recognized by the very same CAS jurisprudence quoted by the Claimant”.

49. The player deemed it essential to emphasize that all the prohibitions contained in the RSTP and developed by the jurisprudence to condition the validity of the employment contract to administrative formalities aim at protecting players from unilateral and abusive behaviours by clubs. Thus, the club could not use such arguments in the present case in order to penalise the player for Al Sadd’s own fault. According to the player, “These faults not only consist of the omission to properly upload the instructions in TMS but Al Sadd even took positive actions which hindered the fulfilment of the Employment Condition Precedent: missing only a few hours from the closure of the Qatari registration period, Mr. Rashad declared that the Club had ‘moved to another option’” (Exhibit 17). Furthermore, “Al Sadd even failed, on the days following the closure of the Qatari registration period, to take any of the actions required to remedy its failures, such as filing a request for a validation exception with FIFA – as repeatedly indicated by Parma and the Player”.

50. The Player also rejected having breached the employment contract – if valid at all – since he only played an official match with Parma on 16 February 2020, that is, after Parma specifically requested twice Al Sadd to confirm that it will execute the employment agreement concluded with the Player (Exhibit 11 and 12), also informing that otherwise the Player would “play for Parma Calcio” (Exhibit 12).

51. Finally the player claims that Al Sadd breached its obligations under art. 152 para. 1 of the Swiss CO by hindering the conclusion of a valid employment contract. Subsidiary: if the Employment Contract was valid, Al Sadd breached it first Al Sadd at fault in preventing performance of the work (art. 324 para. 1 SCO) and subsequent de facto termination. Subsidiarily: the Player, and not Al Sadd, has a claim for culpa in contrahendo.

52. Request of the player: The player thus makes the following requests in his reply to the claim / counterclaim:

“a) declare the Claim inadmissible, since there is no legitimate reason for dealing with it in the sense of art. 5 para. 4 of the FIFA Procedural Rules;

b) recognize that it is competent to hear disputes related to the Employment Contract;

c) dismiss all claims of Al Sadd which are (i) vexatious, (ii) filed in procedural bad-faith and against venire contra factum proprium or (iii) not employment related for lack of jurisdiction;

d) alternatively, in the event that it determines that it has jurisdiction to hear the claims of Al Sadd:

d.1) dismiss the claims of Al Sadd in the merits for the reasons exposed in this Answer & Counterclaim;

d.2) as an alternative, if the Claimant’s claims are accepted, dismiss the claims of Al Sadd against the First Respondent and hold that the Second Respondent as the sole debtor of any compensation to the Claimant;

e) in any event, admit the present Counterclaim and:

e.1) order that Al Sadd pays to the Player an amount of EUR 3,542,500.00 net as compensation for the damages caused by the violation of its obligations under art. 152 para. 1 CO;

e.2) as an alternative, order that Al Sadd pays to the Player (i) outstanding remuneration in the total amount of EUR 250,000.00 net and (ii) compensation for breach of contract in the amount of EUR 5,750,000.00 net;

e.3) as a further alternative, order that Al Sadd pays to the Player (i) remuneration under art. 324 para. 2 Swiss CO in the total amount of EUR 475,677.41 net and (ii) compensation for breach of contract in the amount of EUR 5,322,580.65 net;

e.4) as a final alternative, order that Al Sadd compensate the Player in the total amount prudently set at EUR 4,587,253.29 net of taxes based on the principle of culpa in contrahendo;

e.5) order that Al Sadd pays to the Player an amount of EUR 3,542,500.00 as compensation for the damages caused by the vexatious claim filed against him;

e.6) order that Al Sadd pays to the Player an amount of EUR 1,500,000.00 as damages relating to the specificity of sport;

e.7) all amounts claimed shall be considered as net and thus increased of the corresponding 46,13% to which the Player is currently subject as an Italian tax resident;

e.8) order the payment of legal interest at a rate of 5% p.a. to the values due by Al Sadd to the Player, starting to count on the date when each of them became due until effective payment;

f) Impose sporting sanctions on Al Sadd banning it from registering any new players, either nationally or internationally, for two registration periods;

g) Reject the request of Al Sadd that the Player is restricted from playing official matches for four months;

h) Order Al Sadd to pay any legal expenses or costs faced by the Player in an amount prudently estimated in the excess of EUR 50,000.00 (fifty thousand Euros); i) Order Al Sadd to bear any and all administrative and procedural costs, which have already been incurred or may eventually be incurred in connection with these or future proceedings”.

53. In its reply, Parma also fully rejected the claim of Al Sadd and made a chronological recollection of all facts preceding the signature of the transfer agreement and of the employment contract. In this respect, it claims that, on 29 January 2020, it firstly refused the offer of Al Sadd for the transfer of the player (Annexes 2 and 4). On 30 January 2020, Al Sadd raised its offer for the player and Parma decided to accept it on the same day, provided that such amount would be paid within 48 hours and that the 5% of solidarity would be calculated on top of it. Parma also requested the player to renounce to a portion of the bonuses and salaries not yet paid by Parma.

54. These conditions were rejected by Al Sadd, which on 31 January 2020 at 13:41 provided Parma Calcio with its final offer and a copy of the transfer agreement, drafted solely and already signed by Al Sadd (Annex 10).

55. In its final offer, Al Sadd did not exclude the solidarity contribution from the transfer compensation of EUR 4,500,000. However, the Qatari club changed the date of payment of the transfer compensation to “within 3 weeks of the transfer of the federative sports rights of the Player”.

56. Parma then provided a detailed description of the most relevant events that took place on 31 January 2020:

- At 16:00 - Parma informed Al Sadd via telephone of the club’s acceptance of the offer, subject to the Player accepting to transfer to Al Sadd, but became aware of the fact that the player and Al Sadd had not yet come to an agreement as to the terms of the employment contract.

- At 21:36 - i.e. 24 minutes before the end of the Qatari transfer window, Al Sadd sent the final version of the employment agreement to the Player (Annex 13). At 21:45 on 31 January 2020 the Player signed the transfer agreement for acceptance (Annex 2). At 21:49 on 31 January 2020, Parma Calcio provided Al Sadd with a copy of the transfer agreement signed by Parma Calcio, Al Sadd, as well as by the Player (the “Transfer Agreement”) (Annex 14).

- At 21:50 - Parma entered its instructions into the FIFA Transfer Matching System (the “FIFA TMS”) in order to consent to the release of the International Transfer Certificate (the “ITC”) (Annex 15).

- At 21:56 - the agent of the Player provided Al Sadd via e-mail with a signed copy of the final page of the Employment Agreement (Annex 16).

- At 21:56 - the agent of the Player also provided Xavi with a signed copy of the final page of the Employment Agreement via WhatsApp (Annex 12).

- At 22:00 - the Qatari transfer window closed, before Al Sadd entered its instructions into the FIFA TMS, despite having all the required documentation in its possession (Annex 17).

- At 22:02 - Parma was provided with a signed page of the Employment Agreement by the agent of the Player (Annex 18).

- At 22:02 - Parma immediately forwarded to Al Sadd the signed page of the Employment Agreement, as received from the agent of the Player (Annex 14).

- At 22:09 - Al Sadd entered its instructions into the FIFA TMS (Annex 15). A matching issue arose with reference to the date of payment of the transfer fee.

- At 22:11 - Al Sadd resolved the matching issue (Annex 15).

- At 23:59 - Al Sadd’s coach sent the following message to the agent of the Player: ”The Qatari club entered the transfer instruction too late, when the registration period was closed in Qatar (00:09 Qatar time). This is a clear cut case of transfer that was entered too late, like the transfer of Adrien Silva from Sporting to Leicester. The QFA can ask the ITC but the system will block it. After that, they can ask FIFA intervention. The case would then go the Players Status Committee for a decision, which will not occur before next week and the result of which we cannot guarantee.” (Annex 12).

57. Furthermore, Parma provided a detailed description of the facts occurred as from 1 February 2020, as detailed below:

- On 1 February 2020, Parma requested information from Al Sadd regarding the status of the transfer on the FIFA TMS, which still read “Awaiting ITC request” (Annex 19).

- On 1 February 2020, the Player attempted to call Al Sadd five times. As far as Parma is aware, Al Sadd never replied to the Player until this date.

- On 1 February 2020, Al Sadd informed Parma of the following: “Unfortunately we cannot do this deal…”

- On 3 February 2020, Al Sadd confirmed to have reached an agreement with the Mexican football player Mr Marco Fabian, being the team’s fifth foreign player (Annex 22).

- On 7 February 2020, Parma Calcio requested Al Sadd to execute the transfer agreement and to receive the payment of the transfer fee. Furthermore, Parma Calcio informed Al Sadd that it would hold the Qatari club liable for any damages Parma Calcio would incur if Al Sadd decided not to execute the transfer agreement (Annex 26). Al Sadd did not reply to the correspondence of Parma Calcio.

- On 14 February 2020, Al Sadd replied to Parma Calcio, “after 12 days (!) of failing to answer the correspondences sent by Parma Calcio”. Al Sadd informed Parma Calcio that “The Parties returned to the status quo”, since “the transfer of the Player was not concluded” (Annex 28).

- On 14 February 2020, Parma Calcio immediately answered to the letter of Al Sadd, rejecting the argument of the Qatari club (Annex 29).

- On 15 February 2020, the player was reinstated in the club activities of Parma Calcio, after Al Sadd confirmed in writing its refusal to execute the transfer agreement and in view of mitigating the damages inflicted on Parma Calcio and the player by Al Sadd’s actions (Annex 2).

- On 19 February 2020, Al Sadd sent a new communication to Parma Calcio, alleging that the request of Parma Calcio to execute the transfer “lacks any contractual basis insofar as it is based on a transfer agreement which never entered into force”. Moreover Al Sadd indicated that it did not conclude a valid employment agreement with the Player (Annex 30);

- On 25 February 2020, Parma Calcio replied to the communication sent on 19 February 2020, indicating it would initiate proceedings before the FIFA Players’ Status Committee (Annex 31).

- On 22 April 2020, Parma Calcio filed a claim against Al Sadd, which has been registered under reference number 20-00642.

58. Parma first deems that art. 22 b) of the FIFA Regulations, by stating that FIFA is competent for: “employment-related disputes between a club and a player of an international dimension […]” does not allow that a labour claim involves more than 1 club. In addition to that, and regardless of the validity of the Employment Agreement, it is clear that Al Sadd and the Player intended to opt for the jurisdiction of the Qatar Sport Arbitration Tribunal (the “QSAT”), whereas article XIV par. 2 of the Employment Agreement foresees that “Any dispute between the Club and the Player arisen in connection with the present contract shall be submitted to the exclusive jurisdiction of the Qatar Sports Arbitration Tribunal […].” Parma also deems that the claim is not admissible as per art. 22 a) of the Regulations, since no ITC request was made in the present case. Thus, Parma deems that the claim should be considered as inadmissible.

59. As to the substance, Parma endorses the arguments of the player that no valid employment contract was signed and even if there would be one, quod non, the player did not breach it. Parma also claims that Al Sadd presented a false version of the facts ignoring several pieces of relevant information for the solution of the case.

60. In particular, it points out that the player only received the final version of the Employment Agreement from Al Sadd at 21:36 on 31 January 2020 (i.e. 23:36 on 31 January 2020 in Qatar). Therefore, the player was not in a position to sign the transfer agreement confirming his acceptance, as required by Al Sadd. Likewise, Parma could not provide Al Sadd with a signed copy of the transfer agreement until after the player (i) had received the final copy of the employment agreement from Al Sadd; (ii) had read the employment agreement and (iii) signed the transfer agreement as to confirm his acceptance of the transfer.

61. Notwithstanding the above, Parma was able to provide Al Sadd with a copy of the transfer agreement, which was signed also by the player, at 21:49 on 31 January 2020, i.e. no more than 13 minutes after the Player having received the final version of the employment agreement.

62. Parma fully rejects Al Sadd’s allegation that it is the fault of Parma and the player that the ITC could not be requested before the end of the transfer window in Qatar, as the failure to upload all the documentation within the required time limit, and this despite having all necessary documentation in its possession, was the exclusive fault of Al Sadd.

63. Parma agrees with the player that the employment contract never entered into force since the conditions precedent were not fulfilled, namely: “The validity of this Contract is subject to the specific approval of the QFA and the confirmation that the Player is eligible to play (ratification of the Contract).” The fulfilment of those conditions was the exclusive responsibility of Al Sadd and, with its claim, the aforementioned club violated the legal principle of contra factum proprium non venit. Parma confirms having addressed the matter in writing to Al Sadd on 4 different occasions without receiving any reply, only to receive on 14 February 2020 Al Sadd’s letter in which is stated that “the transfer of the player was not concluded and no payment is due by Al Sadd. The parties return to the status quo”. Thus the player resumed his activities with Parma as from 15 February 2020. Furthermore, on 19 February 2020, Al Sadd confirmed to Parma that “no valid employment contract was concluded between the player and Al Sadd as the validity of said agreement was subject to the approval by the QFA, which was never given. Therefore, the second condition precedent is not met either”. Therefore, Parma was utterly surprised to receive the claim of Al Sadd on 22 April 2020, in absolute contradiction with the club’s previous statements.

64. Parma claims that even if FIFA would considered the contract as valid, the player could not perform it due to reasons exclusively connected to the actions of Al Sadd, as follows: “- Firstly, Al Sadd failed to enter its instructions into the FIFA TMS before the end of the Qatar transfer window, despite having all documents in its possession; - Secondly, Al Sadd did not register the Player with the QFA; - Thirdly, on 5 February 2020, Al Sadd once again ensured that it could no longer register the Player with the QFA, whereas it had registered a 5th foreign player (Annex 25). Indeed, in accordance with article 7.2 of the QFA Regulations on the Status and Transfer of Players, Al Sadd can only register 5 football players which do not have the nationality of Qatar (Annex 23). From the above, it is clear that the Player was not in a position to execute the Employment Agreement or to perform his profession, due to the actions of Al Sadd”. In addition, it remained undisputed by all parties that Al Sadd never requested the player to start executing the employment contract. Parma also deems that even if it is considered that the player terminated the contract, he had a just cause to do so, as his right to play was violated by the club’s omissions.

65. Parma also deems that Al Sadd did not suffer any damages from the fact that the contract did not enter into force and points out that the penalty clause (EUR 50,000,000) is excessive, being subject – if at all applied – to reduction as per art 163 par. 3 of the Swiss CO.

66. Parma understands that even in the unlikely circumstance that FIFA should hold the player liable for the termination of a valid employment contract without just cause, Parma should not be considered as jointly and severally liable as it cannot be considered the new club of the player, being in fact his old club.

67. In its request for relief, Parma held the following:

“In principal order - Declare it does not have competence to adjudicate over the present matter;

In secondary order - Reject the Claim of Al Sadd

In any event - Decide that nothing is payable by Parma Calcio to Al Sadd - Grant any further or other relief to Parma Calcio as the FIFA DRC sees fit

Order Al Sadd to bear any and all costs related to this proceeding”.

68. In its reply to the player’s counterclaim, Al Sadd maintained its previous argumentation and insisted on the validity of the employment contract and its breach on the part of the player, induced by Parma, by failing to comply with their obligations in a timely manner to allow the registration of the player with Al Sadd. Al Sadd also insisted that FIFA should be competent to deal with the present dispute.

69. As to Al Sadd’s correspondence of 14 February 2020, mentioned by both the player and Parma, the club states that “on 14 February 2020, Mr Nilo Effori, the (former) counsel of Al Sadd, took the initiative of addressing a correspondence to Parma without however being mandated to do so by Al Sadd. Parma did not request Mr Nilo Effori to present a power of attorney confirming that he was empowered to represent Al Sadd in the matter at stake. Instead, Parma reiterated its requests. On 15 February 2020, despite the fact that the deadline given on 13 February 2020 had not expired yet, Parma announced on its Twitter account that the Player was called upon for the game between Parma and Sassuolo scheduled on 16 February 2020. On 16 February 2020, the Player took part in the game between Parma and Sassuolo. On 19 February 2020, the newly appointed counsel of Al Sadd, ATFIELD, addressed a correspondence to Parma, stressing that the condition precedents established in the transfer agreement were not fulfilled as a consequence of the bad faith of the Player and Parma. Furthermore, Al Sadd’s counsel informed Parma that a claim would be lodged with FIFA against both parties”.

70. Al Sadd also denies that its claim is in any manner vexatious or made in bad faith. “If anything, the Player’s counterclaim is vexatious and in bad faith. Indeed, given that it is the Player who refuses to execute the employment agreement he agreed to, it shows complete bad faith for him to now request compensation from Al Sadd on such basis”.

71. Al Sadd rejects to have breached its obligations as per art. 152 par. 1 of the Swiss CO, as under the circumstances of the present case “the failure to register the Player with Al Sadd cannot be attributed to Al Sadd and is the consequence of the Player’s refusal to timely provide Al Sadd with a signed copy of the employment agreement despite a clear agreement on the terms (as indicated by the fact that the Player did send a signed version of the employment agreement at a later stage)”.

72. Furthermore, Al Sadd deems that “the fact that negotiations regarding possible modifications to the employment agreement took some time is not what matters in this dispute. The most important fact is that a final agreement was reached between the Player and Al Sadd, that Al Sadd timely provided the Player with his employment contract, but that the Player in bad faith refused to timely send back a signed version of this employment contract”.

73. Al Sadd also rejects the player’s argument that, in case the employment contract is considered valid, Al Sadd breached it first. In this respect, Al Sadd deems that “the failure to register the Player can solely be attributed to the Player’s lack of timely sending a signed version of the employment agreement. […] The other alleged breaches by Al Sadd, as argued by the Player, are all the direct consequence of the Player’s lack of timely signing the employment agreement and failure to cooperate with Al Sadd. Consequently, these can all not be attributed to Al Sadd”. Al Sadd also argues that in case the player found that Al Sadd was in breach of contract, he should have put it in default, which he allegedly failed to do. So, even if Al Sadd had breached the contract, quod non, the premature termination of the player would lack just cause.

74. In view of the aforementioned, Al Sadd deems that the counterclaim of the player should be rejected in full and “in the unlikely event that any amount was awarded to the Player, his claim for gross-up based on Italian tax law shall be rejected for the following reasons. First, the contract clearly established that the amounts due as per the contract are net of any tax in the State of Qatar and that any tax that the Player shall pay in his country of residence, i.e. Italy, must be borne by the Player. In any event, the Player failed to submit any element demonstrating that any potential damages awarded to him would be considered as employment income in Italy and taxed as such”.

75. As to the player´s contractual situation following the said events, as from 15 February 2020, the player resumed work with Parma under his running employment contract, which was valid as from 1 September 2019 until 30 June 2022, as per which he was entitled to receive the following fixed remuneration, with possibility of increase depending on his performance:

For the season 2019/2020: EUR 1,985,000 gross, corresponding to EUR 1,062,000 net;

For the season 2020/2021: EUR 2,325,000 gross, corresponding to EUR 1,245,000 net;

For the season 2021/2022: EUR 2,325,000 gross, corresponding to EUR 1,245,000 net.

II. CONSIDERATIONS OF THE PLAYERS’ STATUS COMMITTEE

A. Competence and applicable legal framework

76. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analysed whether it was competent to deal with the present matter. In this respect, the DRC took note that the present matter was submitted to FIFA on 27 March 2020 and was decided on 8 October 2020. Taking into account the wording of art. 21 of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

77. Subsequently, the Chamber referred to art. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the October 2020 edition of the Regulations on the Status and Transfer of Players, it is competent to deal with the matter at sake which concerns an employment-related dispute of an international dimension between a Qatari club and an Ivorian player, with the intervention of an Italian club.

78. Notwithstanding the above, the DRC noted that the admissibility of the claim is contested by the player and Parma. In this context, the Chamber observed that, whereas the player focused on the standing to sue of Al Sadd (art. 5 para. 4 of the Procedural Rules) and on the allegation that it deems the claim vexatious and partly not employment-related; Parma deems that the claim does not fall into art. 22 a) or b) of the Regulations.

79. In this respect, while taking note of the parties´ argumentation, the DRC deemed that the claim of Al Sadd is based on an employment contract allegedly concluded between a player and a club of different nationalities and the 3rd club’s participation in the proceedings is justified by art. 17 par. 2 of the RSTP.

80. Thus, the DRC determined that the claim is admissible as per art. 22 b) of the RSTP.

81. Furthermore, the DRC analysed which edition of the Regulations on the Status and Transfer of Players 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 October 2020 edition of the Regulations on the Status and Transfer of Players and considering that the present claim was lodged with FIFA on 27 March 2020, the March 2020 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the present matter as to the substance.

B. Burden of proof

82. The DRC recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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. 12 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties.

83. In this respect, the DRC also recalled that, in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

C. Merits of the dispute

84. Its competence and the applicable regulations having been established, and entering into the substance of the matter, the Chamber started by acknowledging the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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.

85. In this context, the Chamber recalled the parties’ respective positions, and determined that the main issue in the case at hand, as disputed by the parties, is whether a valid employment contract was concluded between the player and Al Sadd; and, if considered that they did, if any of the parties is to be found in breach thereof.

86. In this regard, the DRC observed that the player and Parma, while acknowledging that the validity of an employment agreement is not dependent on the existence of a valid transfer agreement, deem that the employment contract was not valid, since its conditions precedent were not fulfilled. Even though the player, in principle, agrees that the non-compliance with such formal requirements does not render the contract invalid per se, and that the contract at hand does contain all the essentialia negotii, in this concrete case, the jurisprudence of the DRC cannot automatically apply, since it is meant to protect the players against sudden unemployment and not to benefit the acquiring club.

87. Furthermore, the Chamber noted that Al Sadd was the party responsible for the deliberate non-execution of such formalities. Having been warned by Parma after the closure of the transfer window in Qatar, Al Sadd did not undertake any measures to try and obtain the registration of the player. On the contrary –continued the Chamber– it explicitly stated that the contract was not valid and that the parties went back to their status quo.

88. In view of the foregoing, the Chamber took note that both, the player and Parma, deem that the contract should be considered invalid.

89. In this respect, the DRC acknowledged that, whereas the jurisprudence of the DRC is intended to protect players against sudden unemployment, such consideration should not be applied in a relative manner, depending on the claiming party. Indeed, explained the Chamber, as confirmed by the player, all essentialia negotii are present in the employment contract and the administrative formalities, such as the ITC request, the registration of the player and a successful medical exam are the responsibility of the club, and the latter’s non-compliance with them does not render the employment contract invalid.

90. Thus, in line with the longstanding jurisprudence of the DRC, the Chamber determined that the parties did conclude a valid employment contract.

91. The above being clarified, the Chamber turned its attention to the second point of discussion, i.e. whether any of the parties breached the contract. In this regard, the DRC stressed that, whereas Al Sadd claims that the player –induced by Parma– breached the employment contract by returning to Parma while being under contract with Al Sadd, the player deems that Al Sadd breached the contract (or even breached it first) by failing to execute the formalities in its responsibility in order to allow the player to join Al Sadd.

92. Furthermore, the DRC acknowledged the argumentation of the player, who pointed out that Al Sadd never requested him to execute the contract and, on the contrary, it affirmed twice that the contract was not valid. Thus, in accordance with the position of the player, Al Sadd cannot lodge the current claim and benefit from its own tort.

93. Having carefully analysed the parties submissions and the documentation on file, the Chamber noted determined that Al Sadd never requested the player to execute the contract; that, upon being requested by Parma whether it would honour the transfer agreement, Al Sadd clearly stated that the transfer of the player did not happen and the parties should go back to the status quo. In addition, the DRC pointed out that the allegation of the Claimant in the sense that Al Sadd’s lawyer acted without their consent and had not been granted the necessary representation powers when sending the aforementioned letter on 14 February 2020, is not proved and cannot be upheld. For clarification purposes, the DRC made reference to Al Sadd’s correspondence of 19 February 2020, sent by its current legal representatives, which reads as follows: “Furthermore, no valid employment contract was concluded between the Player and Al Sadd Football Club as the validity of said agreement was subject to the approval by the QFA, which was never given. Therefore, the second condition precedent is not met either”.

94. On the other hand, the DRC acknowledged that, as from 15 February 2020, the player resumed work with Parma, tacitly accepting Al Sadd’s decision regarding the parties´ going back to the status quo and the player no longer requested Al Sadd to execute the employment contract. What is more –pointed out the Chamber– the player never lodged a claim against Al Sadd and only reacted to the claim of Al Sadd by lodging a counterclaim.

95. In view of all of the above, the DRC stressed that it is clear that the parties mutually and tacitly agreed upon the non-execution of the valid employment contract previously concluded between them. Furthermore, the Chamber explained that Al Sadd, de facto, cannot go against the principle of venire contract factum proprium in order to claim the execution of the employment contract, after failing to comply with its conditions precedent – which were under its responsibility – and explicitly declaring twice that the player’s transfer did not happen and the employment contract was not valid.

96. In addition, -concluded the Chamber- the player cannot benefit from his own tort either, since, by his actions, he clearly accepted –albeit tacitly– the non-execution of the contract and cannot –only in reaction to the club’s claim– allege that the club was in breach of the contract.

97. In conclusion, the DRC determined that the parties had a validly concluded an employment contract which was, however, tacitly and mutually terminated by the parties before the start of its execution.

98. On account of all the above, the DRC decided that the claim of Al Sadd is admissible and that both, Al Sadd´s claim and the player´s counterclaim are rejected in their entirety.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant/Counter-Respondent, Al Sadd SC, is admissible.

2. The counterclaim of the Claimant/Counter-Respondent is rejected.

3. The counterclaim of the Respondent/Counter-Claimant, Kouassi Gervais Yao, is rejected.

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).

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