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 27 January 2021

Decision of the

Dispute Resolution Chamber (DRC) Judge

passed on 27 January 2021

regarding an employment-related dispute concerning the player Yaya Kone

BY:

Alexandra Gómez Bruinewoud (Uruguay/the Netherlands), DRC Judge

CLAIMANT:

YAYA KONE, Côte d'Ivoire

Represented by Nilo Effori

RESPONDENT:

Arar Club, Saudi Arabia

I. FACTS OF THE CASE

1. On 25 September 2020, the Ivorian player, Yaya Kone (hereinafter: the player or the Claimant) and the Saudi Arabian club, Arar Club (hereinafter: the club or the Respondent) signed an employment contract valid as of 1 October 2020 until 31 July 2021 (hereinafter: the contract).

2. According to clause 4.1 of the contact, the club undertook to pay to the player a total remuneration of “only” USD 40,000, broken downs as follows: (a) USD 9,000 upon his registration, and (b) USD 27,000 in 10 equal monthly instalments. More in particular, such clause read as follows (quoted verbatim):

The advance provider

9000 $ American dollar, PAYABLE UPON FINAL REGISTRATION OF THE PLAYER

The duration of the contract

(10) months

Monthly salary

(2700 dollar) two thousand and Seven hundred dollars

Total contract (number)

only 40000 dollars

The total contract (in writing)

Only Forty thousand dollars

Benefits

The first party (the club) provides suitable accommodation for the second party (the player)

3. According to clause 4.2 of the contact, the club undertook the following (quoted verbatim): “The [club] is obligated to the [club] to pay an amount of 4000 thousand US dollars the broker’s commission amount to be Paid after the player’s arrival to the Kingdom of Saudi Arabia”.

4. Clause 4.2.5 of the contract established the following: “Sign insurance covering injury, medical treatment, sickness disability or death during the term of his contract, provided that it shall include insurance coverage for the cases whose effects extend after the end of the contract”.

5. According to the information available in the Transfer Matching System (TMS), the player was registered with the Respondent on 13 October 2020.

6. On 6 October 2020, the player underwent medical examination in Saudi Arabia and was declared “medically fit”.

7. On 15 October 2020, the player injured himself on a friendly match, subsequently undergoing medical examination on 17 October 2020. Such medical examination confirmed that he sustained “partial disruption of the anterior cruciate ligament at the tibial attachment”.

8. On 20, 23 and 25 October 2020, the player wrote to the club and argued that the latter was putting pressure on him to sign a termination agreement. He further stated that he had to leave the current accommodation due to such pressure. In the first letter, the player granted the club five days to explain the situation. In the second letter, the player requested payment of his remuneration of USD 9,000 and agent’s fee of USD 4,000, together with a rehabilitation schedule, to be provided within 48 hours. In the third letter, the player reiterated his position and granted the club with additional 24 hours to cure its breach.

9. On 26 October 2020, the club informed the player that due to his absences in training sessions between 17 October 2020 and 26 October 2020, he was being fined with 30% of his salaries.

10. On the same date, the player rejected the club’s position, reiterated the contents of his previous letters and granted a final deadline “until 3pm Saudi Arabia time” to remedy the situation.

11. On 27 October 2020, the player terminated the contract in writing, stating as follows:

“Despite of the correspondence sent by the Player, the Club ignored his requests and his continued efforts to maintain the stability of the Employment Agreement, to which the treatment for his injury and a full rehabilitation program was of utmost importance.

In addition, the Club kept pressuring the Player to sign a termination agreement, which violates Article 14.2 of the FIFA Regulation on the Status and Transfer of Players and demonstrates serious concern about the Player’s safety in the country.

It gives the evident intention of the Club to not fulfill its contractual obligations and cure it default towards the Player.

Therefore, the Player was left with no option but to unilaterally terminate the Employment Agreement, with just cause.

Thus, this is to communicate to the Club that the Employment Agreement with the Player Yaya Kone is hereby terminated, with just cause”

12. The player remained unemployed by the date this decision was rendered.

II. PROCEEDINGS BEFORE FIFA

13. On 10 November 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. The claim of the Claimant

14. The Claimant maintained that he had just cause to terminate the contract on the grounds of art. 14.2 of the FIFA Regulations on the Status and Transfer of Players. He further referred to text messages exchanged with club representatives, copies of which were enclosed to his statement of claim, and argued that the club unlawfully tried to force him to sign a termination agreement.

15. The player further submitted that he was evicted from his hotel and abandoned by the club. He also argued that the club hindered his exit from Saudi Arabia, which made him seek external help to liaise with the Saudi Arabian Football Federation in order for him to get his exit visa.

16. Lastly, the player highlighted that the club did not pay him his remuneration of USD 9,000 which fell due upon his registration.

17. The requests of the claimant were as follows:

“(i) The claim filed by Yaya Kone is accepted;

(ii) Order the Club to pay the Player the amount corresponding to USD 40,000 as compensation for the breach of contract;

(iii) Grant the Claimant in conformity with the Swiss law and longstanding practice of the Players’ Status Committee, interest on the outstanding compensation amount at a rate of 5% (five per cent) per annum until the date of the effective payment;

(iv) Apply the appropriate sports sanctions on the Club.”

b. Position of the Respondent

18. The Respondent did not reply to the claim in spite of having being invited to do so via correspondence addressed by the FIFA general secretariat to the e-mail accounts of the club found in TMS.

III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE

a. Competence and legal applicable framework

19. First of all, the DRC judge analysed whether she was competent to deal with the matter at hand. In this respect, she took note that the present matter was submitted to FIFA on 10 November 2020 and submitted to a decision on 27 January 2021. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition January 2021; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

20. Subsequently, the 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 2021) she is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an Ivorian player and a Saudi Arabian club.

21. Furthermore, the DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, she confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition January 2021), and considering that the present claim was lodged on 10 November 2020, the October 2020 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

22. The DRC judge 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 DRC judge stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which she may consider evidence not filed by the parties.

23. In this respect, the DRC judge 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

24. 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 on file. However, the DRC judge emphasised that in the following considerations she will refer only to the facts, arguments and documentary evidence, which she considered pertinent for the assessment of the matter at hand.

i. Main legal discussion and considerations

25. The DRC judge started by noting that the issue at stake is whether the player had just cause to terminate the contract, and what are the consequences thereof.

26. Subsequently, the DRC judge took into account that 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. In this way, the DRC judge considered that the Respondent renounced its right to defence and thus accepted the allegations of the Claimant.

27. Furthermore, as a consequence of the aforementioned consideration, the DRC judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules she shall take a decision upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant.

28. Having said this, the DRC judge acknowledged that, in accordance with the contract and supporting evidence filed by the player, it is clear that the club not only did not pay the player his remuneration which fell due on 14 October 2020 – which amounted to more than two monthly salaries – but also that the club put the player in a strained situation. To this end, the DRC judge stressed that the club failed to provide the player with adequate medical support, which is not only a general obligation of clubs but also a contractual duty of the Respondent in line with clause 4.2.5 of the contract.

29. What is more, the DRC judge underlined that the club forced the eviction of the player from his accommodation, and even fined him for his absence from training sessions in spite of the fact that he had been injured while playing for the club and was evidently unable to train.

30. Further to the above, the DRC judge noted that the player in different occasions requested the club to cure its contractual breaches, to no avail.

31. Given the above, the DRC judge was firm to conclude that the actions of the club cannot be condoned. In this respect, she recalled that such actions constitute abusive conducts, as art. 14 par. 2 of the Regulations makes reference, and which therefore entitled the Claimant to terminate the contract with just cause.

32. In short, the DRC judge decided that the overall developments of the case demonstrate that the club tried to force the player to terminate the contract in light of the injury sustained, which, coupled with the club’s failure to timely pay the player the agreed remuneration and cure its contractual breaches once called upon to do so, can only lead to the conclusion that the player terminated the contract with just cause. The club shall consequently bear the consequences that follow.

33. Notwithstanding the above, and highlighting the egregious circumstances the club put the player in, the DRC judge decided to refer the case to the FIFA Disciplinary Committee for assessment of potential breaches of the FIFA Disciplinary Code.

ii. Consequences

34. Having stated the above, the DRC judge turned her attention to the question of the consequences of such unjustified breach of contract committed by the club.

35. The DRC judge observed that the outstanding remuneration at the time of termination amounted to USD 9,000, corresponding to the sign-on fee established under the contract, and which was payable by 14 October 2020.

36. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the DRC judge decided that the club is liable to pay to the player the amounts which were outstanding under the contract at the moment of the termination, i.e. USD 9,000.

37. In addition, taking into consideration the player’s specific request as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC judge decided to award the player interest at the rate of 5% p.a. on the outstanding amounts as from the date of claim until the date of effective payment.

38. Having stated the above, the DRC judge turned to the calculation of the amount of compensation payable to the player by the club in the case at stake. In doing so, the DRC judge firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

39. In application of the relevant provision, the DRC judge held that she first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. 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.

40. As a consequence, the DRC judge determined that the amount of compensation payable by the club to the player had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. She recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

41. Bearing in mind the foregoing as well as the claim of the player, the DRC judge proceeded with the calculation of the monies payable to the player under the terms of the contract until its original end date. Consequently, the DRC judge concluded that the amount of USD 31,000 (i.e. the residual value of the contract corresponding to USD 40,000 minus the USD 9,000 as sign-on fee) serves as the basis for the determination of the amount of compensation for breach of contract.

42. In particular, the DRC judge clarified that the amount of USD 4,000 corresponding to “broker’s fee” had also been included in the overall amount of the contract (USD 40,000) as per clause 4.1. As it was included in the “total contract value”, as referred to in article

4.1 of the contract, it followed in the DRC judge’s opinion that such amount constituted part of the player’s remuneration and should hence be included in the calculation of compensation.

43. In continuation, the DRC judge verified as to whether the player had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

44. To this end, the DRC judge confirmed that the player remained unemployed.

45. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the DRC judge decided that the club must pay the amount of USD 31,000 to the player, which was considered a reasonable and justified amount of compensation for breach of contract in the present matter.

46. Lastly, taking into consideration the player’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC judge decided to award the player interest on said compensation at the rate of 5% p.a. as of the date of claim until the date of effective payment.

iii. Compliance with monetary decisions

47. Finally, taking into account the applicable Regulations, 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.

48. In this regard, the DRC judge highlighted that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods.

49. Therefore, bearing in mind the above, the DRC judge decided that, in the event that the club does not pay the amounts due to the player within 45 days as from the moment in which the player communicates the relevant bank details to the club, provided that the decision is final and binding, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.

50. The DRC judge recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

d. Costs

51. The DRC judge referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, she decided that no procedural costs were to be imposed on the parties.

52. Likewise and for the sake of completeness, the DRC judge recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE

1. The claim of the Claimant, Yaya Kone, is accepted.

2. The Respondent, Arar Club, has to pay to the Claimant the following amounts:

- USD 9,000 as outstanding remuneration plus 5% interest p.a. as from 10 November 2020 until the date of effective payment;

- USD 31,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 10 November 2020 until the date of effective payment.

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

4. 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).

5. In the event that the amount due, plus interest as established 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 following consequences shall arise:

 1.

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. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.

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.

6. This decision is rendered without costs.

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:

Fédération Internationale de Football Association

FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

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