FIFA - Decisión disputa Coulibaly 11052023

REF. FPSD-9182

Decision of the Dispute Resolution Chamber passed on 11 May 2023 regarding an employment-related dispute concerning the player Moussa Coulibaly BY: Clifford J. Hendel (USA & France), Deputy Chairperson Stella Maris Juncos (Argentina), member Alejandro Atilio Taraborrelli (Argentina & Italy), member

CLAIMANT:

Moussa Coulibaly, Mali Represented by FIFPRO Division Africa

RESPONDENT:

Foolad FC, IR Iran pg. 2

REF. FPSD-9182

I. Facts of the case

1. On an unspecified date, the Malian player, Moussa Coulibaly (hereinafter the Claimant or the player) and the Iranian club Foolad FC (hereinafter the Respondent or the club) concluded an employment contract (hereinafter the contract) valid as from 30 June 2022 until the end of the sport season 2022/2023.

2. According to the information in the Transfer Matching system (TMS), the 2022/2023 season in IR Iran ends on 20 May 2023.

3. According to clause 7 of the contract, the player was entitled to receive a total salary of USD 370,000 for the 2022/2023 season, payable as follows: − 30% of the annual salary at the beginning of the season as an advance payment

(i.e. USD 111,000); − USD 51,800 on 17 October 2022; − USD 51,800 on 17 December 2022; − USD 51,800 on 17 February 2023; − USD 51,800 on 17 March 2023; − USD 51,800 on 17 May 2023.

4. Clause 9.1 of the contract stipulated that “This contract is valid only for the first team of the club”.

5. On 22 January 2023, the player wrote to the club, explaining that for the past 3 days he had been sent to train alone 3 times a day, allegedly because he “did not accept the proposal of the president of the club to terminate the employment contract”. The player also states that he does “not accept this training regime as it is breach of my rights as a professional football player”. Thus, he requested the club to immediately reinstate him in the training sessions of the first team and confirm in writing, within the following 2 days, that he was part of the first team and that the club still counted on his services for the remainder of the contract period. In addition, he put the club in default of payment of the amount of USD 33,600 and requested its payment within the following 10 days.

6. On 23 January 2023, the player sent the club another communication, stating that he received a message from the coach of the team, stating he was no longer welcome in the locker room and that he should empty his locker, as it had been assigned to another player.

He once again stated not to accept the club’s decision to replace him and considered the club’s attitude as abusive, aimed at forcing him to terminate the employment contract. He does not deem acceptable to train alone and refers the club to his previous default notice, requesting to be reinstated immediately in the group training sessions. pg. 3

REF. FPSD-9182

7. On 25 January 2023, the player once again wrote to the club, referring to his previous default notices and asking to be reinstated in the first team training sessions within the next 2 days. He also referred the club to the outstanding remuneration.

8. On 29 January 2023, the club issued a “decision of the disciplinary committee” which stated that “with regard to the report of the manager and head coach of the first ‘Adults’ team, the disciplinary committee issues a decision by carefully examining the received reports and also taking into account the description of the situation and matching the issue with the disciplinary

regulations and the provisions of the agreement between the club and the player. Definitive cases of this decision are subject to appeal as soon as they are notified, and non-definite cases can be appealed to [the club]’s appeals committee within a week after notification. At the same time, appeals will not prevent the implementation of an indeterminate sentence”.

9. On 30 January 2023, the player wrote again to the club, pointing out that he had not yet received a formal reply to his previous default notices. He insists on being reinstated in the group training and encloses a video of the Iranian TV, which allegedly announces that he was going to be replaced by a foreign player and shall not be registered for the competition.

He does no accept his de-registration and insists on playing. He refers to the “decision” of 29 January 2023, points out that he was never invited to any disciplinary proceedings and that the decision contains no findings. He requests that the club explains the aforementioned decision. Finally, he requests that his passport is returned and grants the club 2 days to reinstate him in the collective training, to confirm it still counts on his services and to register him.

10. On 31 January 2023, the player writes to the club, confirming to have received the full version of the decision of the disciplinary commission, by means of which he understands to have been fined with 5% of his salary for “leaving training and insulting the technical staff”.

He rejects the fine as well as the accusations. He claims that, prior to the decision, he was never informed of any disciplinary proceedings pending against him and thus his right to a due process was violated. He claims to have no indication of what he had done wrong and states that “the club is trying to build a case against [him] based on false allegations”. Thus, he urges the club to stop this abusive behaviour. He refers to his previous notices and to the club’s violations, i.e. non-payment, exclusion from team, training alone, passport retention,

which have not yet been solved. He requests the club to remedy these defaults immediately.

11. On 31 January 2023, the club replies to the player’s letter, stating that “the objective evidence was sufficient to issue a verdict and there was no need to attend and obtain an explanation in this regard. Regarding the insulting ‘Instagram’ story, you were requested to appear in the meeting of the disciplinary committee and give the necessary explanations. After the attendance and oral explanations, it was decided that you should send your evidence in writing to the disciplinary committee, but no action has been taken in this regard so far. Therefore, you have 48 hours to provide the necessary explanations in writing to this committee. It should be noted pg. 4

REF. FPSD-9182 that failure to provide the requested explanations is not an obstacle to issuing a vote, and in case of abjection, all legal responsibility rests with you”.

12. On 1 February 2023, the player replies to the club confirming receipt of the amount of USD 33,600, paid on that day. Nevertheless, he points out that he is still training alone, was not given back his passport or a confirmation that he will remain in the team and be registered for the competition. Therefore, he requests that such issues are solved within the next 2 days. As to the club’s notice asking him to provide written explanations to the disciplinary commission, he stated that he never received any invitation to appear before such body. “As to the explanations for the Instagram Story, the story did not contain any confidential or controversial information; it just contained general information about my situation”.

13. On 6 February 2023, the player sent the club a termination letter, based on the noncompliance of the club with his previous warnings. He asks the club to confirm in writing that he is a free player and to immediately return his passport and ensure all administrative formalities will be arranged so that he can leave the country.

14. On 7 February 2023, the club replied to the player’s letter, referring to the decisions of 18 and 23 January 2023, by means of which he had been sanctioned. In particular, the club stated that it was the club’s prerogative to send him to individual training and that he was accompanied by a coach, a physiotherapist and a “supplies-man”, but failed to participate in some of the sessions. In addition, on 6 and 7 February 2023, he was allegedly absent to the “breakfast meal”, which is mandatory for the entire team. The club accused the player of insulting the club’s technical staff and spreading fake-news about the club, after attending a meeting of the disciplinary committee. He deliberately chose not to present his written explanations and was therefore sanctioned by default. The club stated his passport would be returned.

15. The player informed the FIFA General Secretariat that he remained unemployed up until this date.

II. Proceedings before FIFA

16. On 7 February 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the Claimant

17. The player claims that, on 18 January 2023, the club requested him to agree to the premature termination of the contract, which he refused. After that, the club acted in bad faith in the sense of “creating a case” to justify his dismissal, in spite of him. According to the player, the club breached the contract by its abusive conduct aimed at forcing him to pg. 5

REF. FPSD-9182 terminate the contract and thus, he deems to have had a just cause to terminate the contact on 6 February 2023, based on art. 14 par. 2 of the Regulations.

18. The player claims that, as a professional player, he has the right to train with his teammates in organised group training sessions, under the supervision of a coach and medical staff.

However, between 19 January and 6 February 2023, he was instructed by the club to train alone, not knowing until when. He also points out that the club never replied to any of his letters, in which he requested to be reinstated in the team. He claims that “This shows a total lack of interest in my services as a professional football player as well as a lack of morality towards me as a human being”.

19. Additionally, the player claims that the club “started inventing reasons to put more pressure on me, including falsely accusing me of offences and imposing disciplinary sanctions on me corresponding to 5% of my annual salary. This is another act of bad faith. The Club took this disciplinary decision to sanction me for “leaving a training and insulting the staff”, yet this has never happened. I was also not invited to state my position in that case and my rights were therefore not respected. This false narrative also made me lose all confidence in the right intentions of the Club”. Also, the club repeatedly ignored his requests to have his passport returned.

20. Based on the foregoing, the player claims he had a just cause to terminate the contact on 6 February 2023, based on art. 14 par. 2 of the Regulations.

21. The player makes the following request for relief: “I request the FIFA DRC to order that the club must pay me the following amounts: - USD 155,400 NET as compensation for breach of contract + 5% interest as from 6 February 2023 - USD 111,000 NET as compensation on the basis of the specificity of sport + 5% interest as from 6 February 2023

Also, I ask FIFA to impose sporting sanctions on the basis of art. 17 par. 4 of the FIFA RSTP”. b. Position of the Respondent

22. In its reply, the club fully rejects the player’s claim.

23. In particular, it explains that “on 18/01/2023 and before the game with Sanat Naft Abadan

team, the player is asked to run on the side of the soft field. At the end of practice, he knocks his sweatshirt and GPS kit on the bench, and according to the report of the team supervisor, he disrupts the team order and starts a verbal argument with the head coach in front of the players. It is not clear to the club what was the reason for this action of the player, it may have been because the player realized that his name was not in the final squad for the next game and a young player replaced him. The matter of throwing the shirt and the GPS kit will be reported to the club by the doctor and the team leader”. pg. 6

REF. FPSD-9182

24. The club claims that the player was in a very bad physical condition and therefore was assigned to individual training, in adequate facilities. The player allegedly did not improve his performance but kept insisting on being reintegrated in the first team. The player’s disciplinary violations however shook his relationship with the club.

25. The club further states that “On January 27, the Foolad Khouzestan senior team participated in another official game. The replacement player of Mr. Coulibaly, who joined the senior team from the U19 team, played in such a way that all Iranian football experts consider him a star and a phenomenon. Less than a month later, when the team went to the Asian Champions League tournament, the same analyzes are presented by foreign experts, and in a short period of time, the club received several offers from Iranian and foreign teams for the replaced player”.

26. The player however kept sending his insistent reminders to the club. On 1 February 2023, the club paid him USD 33,600 as per his request; his other requests however could not be fulfilled due to his unprofessional attitude.

27. The club claims that it was contractually and legally authorised to keep the player’s passport for the duration of the contract. Furthermore, it points out that there is no outstanding remuneration towards the player. Also, it is the club’s technical decision to

keep him in the first team or not, and this decision was in any case temporary.

28. Based on the foregoing, the club understands that the player had no just cause to terminate the contract and requests that: “1. All Requests the claim of the Claimant be rejected

2. The costs of the procedure be borne by the Claimant”.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

29. 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. In this respect, it took note that the present matter was presented to FIFA on 7 February 2023 and submitted for decision on 11 May 2023. Taking into account the wording of art. 34 of the March 2023 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

30. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (March 2022 edition), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an pg. 7

REF. FPSD-9182 employment-related dispute with an international dimension between a player from Mali and a club from IR Iran.

31. Subsequently, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (March 2023 edition), and considering that the present claim was lodged on 7 February 2023, the October 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand

as to the substance. b. Burden of proof

32. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 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. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties, including without limitation the evidence generated by or within the TMS.

c. Merits of the dispute

33. Its competence and the applicable regulations having been established, the Chamber entered into the merits of the dispute. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. 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.

1. Main legal discussion and considerations

34. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that this is a claim of a player against his former club for breach of contract.

35. The Chamber then recalled that while the player deems to have had a just cause to terminate the contract as per art. 14 par. 2 of the Regulations, the club claims that such termination lacked just cause, as the club was entitled to perform all the actions pointed by the player as “abusive”.

36. In this context, the Chamber recalled the wording of art. 13 par. 5 of the Procedural Rules, according to which a party that asserts a fact has the burden of proving it and went on to analyse the documentation provided by the parties in support of their allegations. pg. 8

REF. FPSD-9182

37. Furthermore, the DRC recalled its long-standing jurisprudence, according to which only a

breach or misconduct which is of a certain severity justifies the termination of a contract without prior warning. In other words, only when there are objective criteria which do not reasonably permit to expect the continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to assure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only be an ultima ratio.

38. At this point, the Chamber decided to summarize the facts, which remained undisputed between the parties: - The player unilaterally terminated the contract on 6 February 2023, after sending the club several reminders; - The player was excluded from the group trainings of the first team and sent to individual training; - The player’s passport was in possession of the club for the duration of the contract; - The club’s disciplinary committee issued a decision dated 29 January 2023, imposing on the player a fine of 5% of his salary for “leaving training and insulting the technical staff”; - The amount of USD 33,600 remained outstanding until 1 February 2023; - Part of the USD 51,800 due on 17 October 2022 remained outstanding until 1 February 2023; - The player sent the club 5 warnings before the club replied to the last of them, addressing solely the alleged correctness of the sanction applied on him.

39. Based on the evidence on file as well as the parties’ argumentation, the DRC observed the following: - The club claims the player’s exclusion from the group training of the first team and his sanctioning were justified by his bad performance and faultier behaviour towards the club, However, no proof of the club’s accusations towards the player was provided. The statements issued by the club itself, not signed by the player, cannot to be considered as impartial and substantial evidence of the player’s disciplinary violations.

• The club claims that the player’s exclusion from the first team was temporary but provides no evidence of this having been communicated to the player. - Furthermore, the club failed to provide any evidence that the player was indeed notified of the disciplinary proceedings or invited to participate in them. - The club shall not be entitled by the contract or by the law to retain personal documents of the player, especially not as he repeatedly requests their return. - The contract indeed stipulates that “This contract is valid only for the first team of the club”. pg. 9

REF. FPSD-9182

40. Based on the above, the Chamber concluded that the club’s actions can indeed be described as an abusive behaviour aiming at forcing the counterparty to terminate the contract. Thus, the player had a just cause as per art. 14 par. 2 of the Regulations to terminate the contract unilaterally on 6 February 2023. ii. Consequences

41. Having stated the above, the members of the Chamber turned their attention to the question of the consequences of such unjustified breach of contract committed by the

Respondent.

42. The Chamber observed that the outstanding remuneration at the time of termination, coupled with the specific requests for relief of the player, are equivalent to the December payment under the contract, amounting to USD 51,800.

43. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which were outstanding under the contract at the moment of the termination, i.e. USD 51,800.

44. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amounts as from 6 February 2023 (as per the player’s

request) until the date of effective payment.

45. Having stated the above, the Chamber 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 Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including in particular, the remuneration and other benefits due to the 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.

46. In application of the relevant provision, the Chamber held that it 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 Chamber pg. 10

REF. FPSD-9182 established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

47. As a consequence, the members of the Chamber 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. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

48. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the contract from the date of its unilateral termination until its end date. Consequently, the Chamber concluded that the amount of USD 155,400 (i.e. the USD 51,800 times 3) serves as the basis

for the determination of the amount of compensation for breach of contract.

49. In continuation, the Chamber 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.

50. In this respect, the Chamber noted that the player remained unemployed since the unilateral termination of the contract.

51. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case the player did not sign any new contract following the termination of his previous contract, as a general rule, the compensation shall be equal to the residual value of the contract that was prematurely terminated.

52. Consequently, the Chamber decided to award the player compensation for breach of contract in the amount of USD 155,400 as the residual value of the contract.

53. Lastly, taking into consideration the player’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the player interest on said compensation at the rate of 5% p.a. as of 6 February 2023 until the date of effective payment. iii. Compliance with monetary decisions

54. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par. 1 and 2 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 pg. 11

REF. FPSD-9182 concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

55. In this regard, the DRC 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. The overall maximum duration of the registration ban shall be of up to three entire and consecutive registration periods.

56. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the full amount due (including all applicable interest) to the Claimant within 45 days of notification of the decision, failing which, at the request of the Claimant, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become immediately effective on the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.

57. The Respondent shall make full payment (including all applicable interest) to the bank account provided by the Claimant in the Bank Account Registration Form, which is attached to the present decision.

58. The DRC 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. 24 par. 8 of the Regulations.

d. Costs

59. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which “Procedures are free of charge where at least one of the parties is a player, coach, football agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

60. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

61. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 12

REF. FPSD-9182

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Moussa Coulibaly, is partially accepted.

2. The Respondent, Foolad FC, must pay to the Claimant the following amount(s): - USD 51,800 as outstanding remuneration plus 5% interest p.a. as from 6 February 2023 until the date of effective payment; - USD 155,400 as compensation for breach of contract without just cause plus 5% interest p.a. as from 6 February 2023 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. Full payment (including all applicable interest) shall be made to the bank account indicated in the enclosed Bank Account Registration Form.

5. Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment

(including all applicable interest) is not made within 45 days of notification of this decision, the following consequences shall apply:

1. The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid. The maximum duration of the ban shall be of up to three entire and consecutive registration periods.

2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in the event that full payment (including all applicable interest) is still not made by the end of the three entire and consecutive registration periods.

6. The consequences shall only be enforced at the request of the Claimant in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.

7. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 13

REF. FPSD-9182

NOTE RELATED TO THE APPEAL PROCEDURE: According to article 57 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 17 of the Procedural Rules Governing the Football

Tribunal).

CONTACT INFORMATION

Fédération Internationale de Football Association FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 14