FIFA - Decisión disputa Diallo 16082023

REF. FPSD-9889

Decision of the Dispute Resolution Chamber passed on 16 August 2023 regarding an employment-related dispute concerning the player Diallo Mohamed BY: Roy Vermeer (the Netherlands)

CLAIMANT/COUNTER-RESPONDENT:

Diallo Mohamed, Mali Represented by Loizos Hadjidemetriou & Associates L.L.C.

RESPONDENT/COUNTER-CLAIMANT:

OLYMPIAS LYMPION, Cyprus Represented by Marios K. Apostolidis pg. 2

REF. FPSD-9889

I. Facts of the case

1. On 27 July 2022, the, club from Cyprus, Olympias Lympion (hereinafter: Club or Respondent/CounterClaimant) sent an invitation letter to the player from Mali, Diallo Mohamed (hereinafter: Player or Claimant/Counter-Respondent) to join its football team, which invitation letter stipulated the following. “Dear Mr. DIALLO MOHAMED We would like to invite you in Cyprus to join our football team in Olympias Lympion as a football player for the 2022/23 season. - The 2022/23 season begins from 01/08/2022 until 31/05/2023 - The player must be in Cyprus before 10/08/2022 when the preseason training of our team begin.

Our club will take care of the hosting expenses. We are looking forward to welcome you to Cyprus, DIALLO MOHAMED”

2. On the same date, together with the invitation letter, the Club allegedly sent a pre-contract agreement (hereinafter: pre-contract), mentioning the following terms: “This official pre contract agreement is made today between Athletic Club Olympias Lympion and the professional football player Diallo Mohammed, passport number AAD531758, date of birth 11/03/1996.

This pre contract becomes effective only when the player successfully passes the ergo metrics test (with the desirable numbers) as well as the medical examinations.

It is pre agrees that the player will receive the following benefits, for the football period 2022/ 2023. Salary for August 1300 euro Salary for September 1300 euro Salary for October 1300 euro Salary for November 1300 euro Salary for December 1300 euro Salary for January 1300 euro Salary for February 1300 euro Salary for March 1300 euro Salary for April 1300 euro Ticket pay in Cyprus Visa fees in Cyprus”

3. On 31 August 2022, the Player and the Club concluded an employment contract (hereinafter: contract) valid as from 1 September 2022 until 31 May 2023. pg. 3

REF. FPSD-9889

4. In accordance with clause 1.3 of the contract, the Player would be entitled to a monthly remuneration of: (i) EUR 150 net from 1 September 2022 until 30 April 2023; and (ii) EUR 0 net from 1 May until 31 May 2023.

5. On an unspecified date, the Player allegedly travelled to Cyprus and successfully passed all medical examinations.

6. According to the Player despite the fact that his agreed salary was EUR 1,100 per month, the contract stipulated it at EUR 150 net, apparently the reasoning provided by the Club was that it was indicated as such due to internal practices.

7. In this context, the Player indicated that as reassurance, the parties signed a further document , which mentioned the following: “This official pre contract agreement is made today between ATHLETIC CLUB OLYMPIAS LYMPION and the professional football player Diallo Mohamed, passport number AA0531758, date of birth 11/03/1996

It is pre agrees that the player will receive the following benefits, for the football benefits, for the football period 2022/2023.

MONTHLY SALARY 1100 EURO

BONUS 50EURO GOAL OR ASSIST

ROOM & CAR”

8. On 3 January 2023, the Player sent a default notice to the Club, requesting the total amount of EUR 2,300 net as outstanding salaries, EUR 50 net as outstanding bonus and EUR 2,214 as flight ticket reimbursement, granting it a deadline of 15 days.

9. The Claimant indicated that the Club had not yet issued him a visa and in that in essence he was illegally Cyprus.

10. On 1 February 2023, the Club issued the following declaration to the Claimant, which he refused to sign: “The football player, Diallo Mohamed CFA ID 299 565, Passport ID AA0531758 represents and warrants that is has no financial claim or other claim against the club Olympias Lympion The football club Olympias Lympion represents and warrants that is has no financial claim other claim against the football player, Diallo Mohamed CFA ID 299 565, Passport ID AA0531758.”

11. On 6 February 2023, the Cyprus Football Association (CFA) informed the Player, that “no termination either mutual, or unilateral has been filed regarding his employment agreement with the Club Olympias Lympion. A letter of guarantee has been submitted by the president on 31/01/2023. Therefore, the football player has been deregistered from the list of eligible to compete professional players of the Club.” pg. 4

REF. FPSD-9889

12. On 24 February 2023, the Player sent a termination notice to the Club.

II. Proceedings before FIFA

13. On 12 April 2023, the Player filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the Player

14. According to the Player, “he terminated his employment with just cause since he successfully invoked art. 14bis of the FIFA RSTP but also because he had been deregistered from the list of eligible to compete

players, without even being asked and without his consent.”

15. The requests for relief of the Player, were that the Club is ordered to pay him: “i. EUR 100, plus legal interest from 01/11/2022 until full settlement. ii. EUR 1,100, plus legal interest from 01/12/2022 until full settlement EUR 1,100, plus legal interest from 01/01/2023until full settlement iv. EUR 1,100, plus legal interest from 01/02/2023 until full settlement

1. EUR 50, plus legal interest from 11/04/2023 until full settlement. vi. EUR 2,214,plus legal interest from 11/04/2023 until full settlement vii. EUR 4,400 as compensation, plus legal interest from 11/04/2023 until full settlement”

b. Position of the Club

16. In its reply, the Club mentioned that the Player allegedly arrived in Cyprus on 25 August 2022 and a few days later he failed the medical tests carried out by the Club’s doctor.

17. According to the Club, the contract dated 31 August 2022, is the only actual and valid employment agreement between the parties and that the Player “received his monthly salaries of September 2022, October 2022, November 2022 and December 2022 in full”.

18. In this regard the Club indicated that “the DRC must reject the Player claims regarding the validity and binding of the above pre-agreement from the moment the parties mutually agreed otherwise by signing the employment agreement dated 31/08/2022. Also the Club states that the Player fail to prove that the above mentioned pre-Agreement is a part of the actual employment relationship between the parties.”

19. The Club indicated that the Player illustrated bad behaviour which it addressed on several occasions, it even offered “him a 350 euro per month raise, however the Player refused to comply and continued to show complete bad behavior and poor discipline, leaving the Club having no other choice than to replace

him with a new striker.” pg. 5

REF. FPSD-9889

20. In this context, the Club indicated that after they replaced the Player, “they deregistered him from the list of eligible to compete to the Championship players due to the CFA registration rules, which prohibit a Cyprus B' Division club from having more than two non-EU registered players. “

21. The Club mentioned that “despite the deregistration of the Claimant, the Club continued to consider the Player as part of the Club, while also continued to provide him with accommodation and a car.”

22. Furthermore, the Club claims “that it never breached the employment agreement between the parties or neglecting complying with the contractual and its financial obligations, unlike the Claimant, who terminated the agreement without just a cause in order to move to a club with higher salary.”

23. Regarding the issuance of the visa of the Player, the Club mentioned “that the delay in the issuance of the Claimant’s working Visa is completely irrelevant to the matter in dispute and that in any event the Player is not entitled to use that as an excuse in order to terminate the employment agreement without the Club’s consent . It is also a fact that FIFA's deciding bodies are not competent to decide upon matters of criminal law and that such affairs fall into the jurisdiction of Cyprus criminal authority.”

24. In conclusion the Club claims that the Player had no just cause to terminate the contract and requests the issuance of a decision as the plea of its counterclaim as follows: COUNTERCLAIM: “a) The Player shall pay Compensation for breach of contract without just cause plus 5% interest p.a. until full settlement. b) The Player shall also be imposed sporting sanctions pursuant to Article 17.3 RSTP.”

c. Player reply to the counterclaim of the Club

25. In reply to the counterclaim of the Club, the Player firstly amended his claim as follows, requesting that the Club is ordered to pay him the following: “i. EUR 100, plus legal interest from 01/11/2022 until full settlement.

1. EUR 1,100, plus legal interest from 01/12/2022 until full settlement EUR 1,100, plus legal interest from 01/01/2023until full settlement iv. EUR 1,100, plus legal interest from 01/02/2023 until full settlement
2. EUR 50, plus legal interest from 11/04/2023 until full settlement. vi. EUR 2,214,plus legal interest from 11/04/2023 until full settlement vii. EUR 4,400 as compensation, plus legal interest from 11/04/2023 until full settlement viii. Additional compensation up to 6 monthly salaries, plus legal interest, as per art. 17(1)|(ii)FIFARSTP, for the reason that the termination was made due to the existence of due payables and also because of the existence of egregious circumstances.” pg. 6

REF. FPSD-9889

26. Moreover, the Player indicated, “as far as the Club’s allegations are concerned, none of them can be accepted. The Club is trying to mislead the FIFA DRC but, in its attempt, to do so, it has failed a number of conflicting allegations.”

27. In conclusion, the Player requested a decision to be issued as per his amended claim.

d. Final comments of the Club

28. The Club was granted an opportunity to comment on the amended claim of the player and in this regard reiterated, “all the allegations made in its Statement of Defense, denying all accusations made by the Player in this Application, it further request the dismissal of the Application and asks the DRC to rule that the disputed employment agreement was terminated unjustifiably by the Claimant.”

29. Consequently, the Club seeks compensation according to the counterclaim and that the Player shall also be subject to sporting sanctions in accordance with Article 17.3 of the RSTP. pg. 7

REF. FPSD-9889

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

30. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as Single Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was presented to FIFA on 12 April 2023 and submitted for decision on 16 August 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.

31. Subsequently, the Single Judge 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 May 2023 edition), the Single Judge is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from Mali and a club from Cyprus.

32. Subsequently, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (May 2023 edition), and considering that the present claim was lodged on 12 April 2023, the March 2023 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

33. The Single Judge 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 Single Judge stressed the wording of art. 13 par.

4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties, including without limitation the evidence generated by or within the Transfer Matching System (TMS). c. Merits of the dispute

34. His competence and the applicable regulations having been established, the Single Judge entered into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Single Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand. pg. 8

REF. FPSD-9889

1. Main legal discussion and considerations

35. The foregoing having been established, the Single Judge moved to the substance of the matter and recalled that the on 27 July 2022, the Club sent an invitation letter and pre-contract to the Player and that on 31 August 2022, the parties subsequently concluded an employment contract valid as from 1 September 2022 until 31 May 2023.

36. The Single Judge observed that the parties signed various agreements in the establishment of their employment relationship, specifically the following (i) a pre-contract which determined the Player’s monthly salary as EUR 1,300, (ii) an employment contract which indicated the Player’s monthly salary as EUR 150 and (iii) a contract agreement which establish the Player’s monthly salary as EUR 1,100.

37. The Single Judge took note of the position of the Club, which argued that the pre-contract should not be taken into consideration in assessment of this matter on the basis that the only agreement concluded between the parties which established the salary entitlement of the Player is the employment contract.

38. On the other hand, the Single judge observed that the Player submitted corroborating evidence confirming that the Club agreed to a monthly salary of at least EUR 1,100.

39. On account of the above and the documentation on file, the Single Judge decided that the argument

of the Club in this regard could not be upheld, as from the information on file, it can be concluded that the Player in good faith believed that his monthly salary was confirmed as the amount of EUR 1,100.

40. In continuation, the Single Judge noted that the player maintained that he had just cause to terminate the contract in light of the fact that “he successfully invoked art. 14bis of the FIFA RSTP but also because he had been deregistered from the list of eligible to compete players, without even being asked and without his consent.”

41. The Single Judge observed that the club, rejected the player’s claim and lodged a counterclaim for breach of contract alleging that the player had no just cause to terminate the contract, further arguing that (i) despite the deregistration of the Player, the Club continued to consider the Player as part of the Club, and (ii) that the delay in the issuance of the Player’s working Visa is completely irrelevant to the matter in dispute and that in any event the Player is not entitled to use that as an excuse in order to terminate the employment agreement.

42. The Single Judge acknowledged that the Player rejected the Club’s counterclaim, arguing that the “club attempted to mislead the FIFA DRC but, in its attempt, to do so, it has failed a number of conflicting allegations.”

43. In this context, the Single Judge acknowledged that his task was to determine as to whether the Player had terminated the contract with or without just cause and to decide on the consequences thereof. pg. 9

REF. FPSD-9889

44. The Single Judge, firstly addressed the position regarding the de-registration of the Player and remarked that on analysis of the documentation and information on file, the Club confirmed that it deregistered the player due to the CFA registration rules, which prohibit a Cyprus B' Division club from having more than two non-EU registered players. “

45. The Single Judge considered it important to point out, as has been previously sustained by the DRC,

that among a player’s fundamental rights under an employment contract, is not only his right to a timely payment of his remuneration, but also his right to access training and to be given the possibility to compete with his fellow teammates in the team’s official matches.

46. Therefore, the Single Judge established that the “deregistration” of the player could in principle constitute a breach of contract since it de facto prevents a player from being eligible to play for his club.

47. Additionally, and in reference to the issuance of the visa of the Player, the Single Judge referred to the jurisprudence of the DRC, in accordance with which a club is responsible to perform all administrative steps (including the issuance of a visa) in order to allow a player to provide his employment services in accordance with his contract.

48. Taking all the above into consideration. Furthermore, the Single Judge concluded that the club had been in breach of its contractual obligations towards the player, in particular that (i) the player was not paid in full as per his agreed remuneration (ii) he did not have a valid visa to provide his employment services, and (ii), was subsequently deregistered by the club.

49. As a result of the above, the Single Judge concluded that the Player had just cause to terminate the employment contract on 24 February 2023 and that, as a result, the Club is to be held liable for the early termination of the employment contact.

50. Consequently, the Single Judge decided to reject the counterclaim of the Club. ii. Consequences

51. Having stated the above, the Single Judge turned his attention to the question of the consequences of such unjustified breach of contract committed by the Club.

52. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Single Judge 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. EUR 4,550.

53. In addition, taking into consideration the Player’s request as well as the constant practice of the Single Judge in this regard, the latter decided to award the Player interest at the rate of 5% p.a. on the above outstanding remuneration as from the respective due dates until the date of effective payment. pg. 10

REF. FPSD-9889

54. As to the reimbursement of travel expenses, on analysis of the documentation on file, the Single Judge decided that the Respondent is liable to pay to the Player the amount of EUR 2,224 related to flight tickets.

55. In addition, taking into consideration the Player’s request as well as the constant practice of the Single Judge in this regard, the latter decided to award the Player interest at the rate of 5% p.a. on the above outstanding amount as from 24 February 2023 until the date of effective payment.

56. Having stated the above, the Single 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 Single 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.

57. In application of the relevant provision, the Single Judge 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 Single Judge established that no such compensation

clause was included in the employment contract at the basis of the matter at stake.

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

59. Bearing in mind the foregoing as well as the claim of the Player, the Single Judge 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 Single Judge concluded that the amount of EUR 3,300 (i.e. the residual value of the contract, March until May 2023 at EUR 1,100 per month) serves as the basis for the determination of the amount of compensation for breach of contract.

60. In continuation, the Single 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. pg. 11

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61. Indeed, the player found employment with Coton Sport Benin valid from 25 February 2023 until 24

February 2025. In accordance with the pertinent employment contract, the player was entitled to approximately (West African Franc) CFA 650,000 per month (approximately EUR 992). Therefore, the Chamber concluded that the player mitigated his damages in the total approximate amount of EUR 2,976, that is, EUR 992 times 3.

62. Subsequently, the Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which a player is entitled to an amount corresponding to three monthly salaries as additional compensation should the termination of the employment contract at stake be due to overdue payables. In the case at hand, the Single Judge confirmed that the contract termination took place due to said reason i.e. overdue payables by the club, and therefore decided that the player shall receive additional compensation.

63. In this respect, the Single Judge decided to award the amount of additional compensation of EUR 3,300, i.e. three times the monthly remuneration of the Player.

64. The Single Judge reminded the parties that, as per the last sentence of art. 17 par. 1 lit. ii) of the Regulations, the overall compensation may never exceed the rest value of the prematurely terminated contract.

65. Consequently, on account of all the above-mentioned considerations and the specificities of the case at hand, the Single Judge decided that the Club must pay the amount of EUR 3,300 to the Player (i.e.

EUR 3,300 minus EUR 2,976 plus EUR 3,300, limited to a maximum of EUR 3,300), which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

66. Lastly, taking into consideration the Player’s request as well as the constant practice of the Single Judge in this regard, the latter decided to award the Player interest on said compensation at the rate of 5% p.a. as of 24 February 2023 until the date of effective payment. iii. Compliance with monetary decisions

67. Finally, taking into account the applicable Regulations, the Single Judge 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 concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

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

69. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must pay the full amount due (including all applicable interest) to the Claimant within 45 days of notification of pg. 12

REF. FPSD-9889 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.

70. 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.

71. The Single 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. 24 par. 8 of the

Regulations. d. Costs

72. The Single Judge 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 Single Judge decided that no procedural costs were to be imposed on the parties.

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

74. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief made

by any of the parties. pg. 13

REF. FPSD-9889

Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Diallo Mohamed, is partially accepted.

2. The Respondent, OLYMPIAS LYMPION, must pay to the Claimant the following amount(s):

(a) EUR 4,550 as outstanding remuneration plus 5% interest p.a. as from the respective due dates until the date of effective payment: - EUR 100 as from 1 November 2022 - EUR 1,100 as from 1 December 2022 - EUR 1,100 as from 1 January 2023 - EUR 1,100 as from 1 February 2023 - EUR 1,100 as from 24 February 2023 - EUR 50 as from 24 February 2023 (b) EUR 2,214 as outstanding amount plus 5% interest p.a. as from 24 February 2023 until the date of effective payment (c) EUR 3,300 as compensation for breach of contract without just cause plus 5% interest p.a. as from 24 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. 14

REF. FPSD-9889

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. 15