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 an employment-related dispute concerning the player Guibihi Florent Didier Kore

COMPOSITION:

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

CLAIMANT:

Saham Club, Oman

RESPONDENT 1:

Guibihi Florent Didier Kore, Côte d'Ivoire

Represented by Turgce Orhan

RESPONDENT 2:

Naft Al Wasat SC, Iraq

I. Facts

1. On 17 June 2019, the Omani club, Saham Club (hereinafter: Saham or the Claimant) and the Ivorian player, Guibihi Florent Didier Kore, born on 17 April 1989, signed an employment contract (hereinafter: the contract), valid as from 1 August 2019 until 31 May 2020.

2. In accordance with the contract, the club undertook to pay to the player the total amount of USD 70,000, as follows:

• USD 15,000 as a sign-on fee, which entitlement was subject to the receipt of the ITC and to the pass of a medical check;

• USD 10,000 on 31 January 2020;

• USD 45,000 divided in ten monthly instalments of USD 4,500 each.

3. According to the information available on TMS, on 1 July 2019, the player signed an employment contract with the Iraqi club, Naft Al Wasat SC, valid as from 1 September 2019 until 1 July 2020 and was entitled to USD 135,000 for the duration of the contract payable as follows:

• 30% one month after the beginning of the contract;

• 70% as 8 monthly salaries (the first one being 2 months after the beginning of the contract.

4. On 22 May 2020, the Claimant lodged a claim against the player and the new club, requesting compensation for breach of contract in the amount of USD 100,000 , broken down by the Claimant as follows:

• USD 70,000 corresponding to the whole value of the contract;

• USD 30,000 corresponding to moral damages.

5. In its claim, the Claimant firstly explained that, despite it and the player having concluded the contract, the player did not join the club of the Claimant and, consequently, failed to comply with his contractual obligations.

6. In this context, the Claimant explained that, by means of its letter dated 21 August 2019, the Claimant sent a letter to the player, requesting the latter to join the team and granting the player a deadline of 4 days to do so. In this regard, the Claimant held that it had provided the player with all the necessary documentation, i.e. the employment visa as well as the flight tickets to fly to Oman; though, to no avail.

7. Moreover, the Claimant alleged that not only did the player fail to comply with its obligations as per the contract, but that he also breached the contract by signing a new one with the Iraqi club, Naft Al Wasat SC (hereinafter: Al Wasat or the new club), which should be held jointly liable for having induced the player to breach the contract.

8. In reply to the claim of the Claimant, the player held that the Claimant had tried to terminate the contract with him and to make him sign a new contract with lower amounts.

9. The player held that he had tried to contact the Claimant to find a settlement and always acted in line with the employment contract, but that the Claimant never answered him.

10. The player held that since the Claimant never replied to him, he went on to sign with the new club.

11. In view of the foregoing, the player is requesting that it be declared that he did not breach the contract.

12. Despite being requested to provide comments on the claim of the Claimant, the new club failed to do so.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. 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.

2. Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural Rules and emphasised that, in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, the Dispute Resolution Chamber is competent to deal with matters which concern employment-related disputes with an international dimension between players and clubs, such as the present one, which involves a club from Oman, a player from Côte d’Ivoire and a club from Iraq.

3. In continuation, the Dispute Resolution Chamber analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Dispute Resolution Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering that the claim was lodged on 22 May 2020, the March 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4. With the above having been established, the Dispute Resolution Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the Dispute Resolution Chamber emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand. The DRC underlined that, in accordance with art. 12 par. 5 of the Procedural Rules, it may use any documentation or evidence generated by or contained in TMS (in accordance with art. 6 par. 3 of Annexe 3 of the Regulations on the Status and Transfer of Players).

5. In this respect, the Chamber noted that, on 17 June 2019, the Claimant and the player signed an employment contract, valid as from 1 August 2019 until 31 May 2020.

6. Thereafter, the Chamber observed that Saham lodged a claim against the player and the new club, requesting compensation for breach of contract. The Chamber further noted that Saham further noted that the player breached the contract it had with him since he signed a new one with Al Wasat.

7. Within this context, the Chamber noted that, for its part, the player did not deny that he signed a contract with Saham, but only argued that it was not executed insofar the Claimant tried to lower his remuneration.

8. In view of the above, the Chamber wished to clarify that, regardless of the entry into force of the contract between Saham and the player, it is undisputed that a valid and binding contract was signed between said two parties. The Chamber wished to clarify that the conclusion of a contract is a distinct matter from its execution. In this casae, the contract was undeniably concluded between Saham and the player, and thus, affected by the principle of pacta sunt servanda.

9. Subsequently, the Chamber verified that, according to the information contained in the TMS, on 1 July 2019 (i.e. after the contract with Saham), the player signed an employment contract with Al Wasat, valid as from 1 September 2019 until 1 July 2020.

10. Given these circumstances, the Chamber recalled that, according to art. 18 par. 5 of the Regulations, if a player enters into an employment contract with different clubs for the same period of time, the provisions of Chapter IV of the Regulations regarding the maintenance of contractual stability between professionals and clubs shall apply (cf. art. 18 par. 5 of the Regulations).

11. In continuation, the members of the Chamber referred to item 7. of the “Definitions” section of the Regulations, which stipulates inter alia that the protected period comprises “three entire seasons or three years, whichever comes first, following the entry into force of a contract, where such contract is concluded prior to the 28th birthday of the professional, or two entire seasons or two years, whichever comes first, following the entry into force of a contract, where such contract is concluded after the 28th birthday of the professional”. In this regard, the Dispute Resolution Chamber pointed out that given the facts of the present case, a breach of contract had obviously occurred within the applicable protected period, considering that the player almost simultaneously concluded two employment contracts, a fact that is clearly condemned by the Regulations.

12. Therefore DRC established that, in accordance with art. 17 par. 1 of the Regulations, the Respondent 1 is liable to pay compensation to the Claimant.

13. Furthermore, in accordance with the unambiguous contents of article 17 par. 2 of the Regulations, the Chamber established that the player’s new club, i.e. Naft Al Wasat, shall be jointly and severally liable for the payment of compensation. In this respect, the Chamber was eager to point out that the joint liability of the player’s new club is independent from the question as to whether the new club has induced the contractual breach. This conclusion is in line with the well-established jurisprudence of the Chamber and has been repeatedly confirmed by the CAS.

14. Notwithstanding the aforementioned, the Chamber recalled that according to art. 17 par. 4 sent. 2 of the Regulations, it shall be presumed, unless established to the contrary, that any club signing a professional who has terminated his contract without just cause has induced that professional to commit a breach.

15. In this context, the Chamber focused on the primacy of the principle of the maintenance of contractual stability, which represents a central element of the Regulations.

16. Above all, the Chamber was eager to point out that the measures provided for by the above Regulations concerning in particular compensation for breach of contract without just cause serve as a deterrent aimed at discouraging the early termination of employment contracts by either contractual party and that a lack of a firm response by the competent deciding authorities would represent an inappropriate example towards all the football actors.

17. In this respect, awarding compensation in favour of the damaged party has proven to be an efficient means and has always found a widespread acceptance since it guarantees that the fundamental principle of the respect of the contracts is duly accounted for.

18. Above all, it was emphasised that the criteria contained in art. 17 of the Regulations are applied with the principle of reciprocity for clubs and players, signifying that clubs and professional players who are seen to have committed a breach of contract without just cause will in all cases be subject to pay compensation and, under specific circumstances, also be subject to the imposition of sporting sanctions.

19. Having stated the above, the Chamber 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 reiterated 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 Respondent I under the existing contract and/or the new contract(s), the time remaining on the existing contract up to a maximum of five years as well as the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within a protected period. The DRC recalled that the list of objective criteria is not exhaustive and that the broad scope of criteria indicated tends to ensure that a just and fair amount of compensation is awarded to the prejudiced party.

20. In application of the relevant provision, the Chamber held that it first of all had to clarify whether the pertinent employment contract between the Claimant and the player contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

21. As a consequence, the members of the Chamber determined that the prejudice suffered by the Claimant in the present matter had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. In this regard, the DRC 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.

22. According to the documentation provided by the parties, it appears that in accordance with the player’s employment contract with the Claimant which was to run until 31 May 2020, and for which the player would receive the total amount of USD 70,000.

23. On the other hand, the value of the new employment contract, concluded between the Respondent 1 and the Respondent 2, valid until 1 July 2020, had a total value of USD 135,000 , payable as follows:

- 30% one month after the beginning of the contract;

- 70% as 8 monthly salaries (the first one being 2 months after the beginning of the contract.

24. As a result, the Chamber understood that the payments would be performed as follows: 30% would correspondent to USD 40,500; whereas 70% would amount to USD 94,500. Thus, the player would be entitled to a monthly salary is USD 11,812.5 (i.e 94,500/8)..

25. Is a result, the Chamber estimated that, until 31 May 2020 (i.e. the date of expiration of the contract with the Claimant), the player would have earned from the Naft Al Wasat, the approximate total amount of USD 123,187 (i.e. USD 40,500+7*11,812.5)

26. Accordingly, under the aforementioned employment contracts with said clubs, the player was to receive the approximate average income of USD 96,593 per year (i.e. USD 70,000 + 123.187/2). The Chamber understood that said amount shall serve as the payable compensation in view of its longstanding jurisprudence for comparable cases.

27. Consequently, on account of the above-mentioned considerations, the Chamber decided that the Respondent 1 must pay the amount of USD 96,593.75 to the Claimant as compensation for breach of contract. Furthermore, the Respondent 2 is jointly and severally liable for the payment of the relevant compensation, as established above.

28. In continuation, the Chamber focused on the further consequences of the breach of contract in question and, in this respect, addressed the question of sporting sanctions against the player in accordance with art. 17 par. 3 of the Regulations. The cited provision stipulates that, in addition to the obligation to pay compensation, sporting sanctions shall be imposed on any player found to be in breach of contract during the protected period. Furthermore, the Chamber recalled, once again, that art. 18 par. 5 of the Regulations, which deals with the consequences of entering into more than one contract covering the same time period, clearly states that a player shall be subject to the provisions of Chapter IV of the Regulations regarding the maintenance of contractual stability between professionals and clubs.

29. With regard to the quoted provision, the Chamber emphasised that a suspension of four months on a player’s eligibility to participate in official matches is the minimum sporting sanction that can be imposed for breach of contract during the protected period. This sanction, according to the explicit wording of the relevant provision, can be extended in case of aggravating circumstances. In other words, the Regulations intend to guarantee a restriction on the player’s eligibility of four months as the minimum sanction. Therefore, the relevant provision does not provide the possibility for the deciding body to reduce the sanction under the fixed minimum duration in case of mitigating circumstances.

30. In this regard, the Dispute Resolution Chamber recalled that the breach of contract by the player had occurred during the applicable protected period. Consequently, the Chamber decided that, by virtue of art. 17 par. 3 of the Regulations, the Respondent 1 had to be sanctioned with a restriction of four months on his eligibility to participate in official matches.

31. Finally, the Chamber rejected the request for moral damages due to a lack of substantiation and legal basis.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Saham Club, is partially accepted.

2. The Respondent 1, Guibihi Florent Didier Kore, has to pay to the Claimant, the following amount:

- USD 96,593.75 as compensation for breach of contract without just cause..

3. The Respondent 2, Naft Al Wasat SC, is jointly and severally liable for the payment of the aforementioned compensation.

4. A restriction of four months on the eligility of the Respondent 1, Guibihi Florent Didier Kore, eligibility to play in official matches is imposed on him. This sanction applies with immediate effect as of the date of notification of the present decision. The sporting sanctions shall remain suspended in the period between the last official match of the season and the first official match of the next season, in both cases including national cups and international championships for clubs.

5. Any further claims of the Claimant are rejected.

6. The Claimant is directed to immediately and directly inform the Respondents of the relevant bank account to which the Respondent must pay the due amount.

7. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

8. In the event In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.

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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