FIFA - Decisión disputa Faye 24052023

REF. FPSD-7479

Decision of the Dispute Resolution Chamber passed on 24 May 2023 regarding an employment-related dispute concerning the player LASSANA FAYE BY: Clifford J. Hendel (USA & France), Deputy Chairperson Stella Maris Juncos (Argentina), member Alejandro Atilio Taraborrelli (Argentina & Italy), member

CLAIMANT:

Lassana Faye, Netherlands Represented by Gonçalo Almeida

RESPONDENT:

FC Rukh Lviv, Represented by Yosyf Ivanyuk pg. 2

REF. FPSD-7479

I. Facts of the case

1. On 14 January 2022, the Dutch player, LASSANA FAYE (hereinafter: Claimant or player) and the Ukrainian club, FC Rukh Lviv (hereinafter: club or Respondent) concluded an employment contract (hereinafter: contract) as well as an annex, valid as from 14 January 2022 until 31 December 2024.

2. According to the contract, the Respondent undertook to pay the Claimant a monthly salary of Ukrainian Hryvnia (UAH) 6,500 (approx. EUR 200).

3. According to the annex to the contract, the Respondent undertook to pay the Claimant the following amounts in addition to the contract: - EUR 7,800 as monthly salary as from 14 January 2022 until 31 December 2022; - EUR 8,800 as monthly salary as from 1 January 2023 until 31 December 2023; - EUR 9,800 as monthly salary as from 1 January 2024 until 31 December 2024.

4. Art. 6.4 of the contract establishes: “The sanctions are applied against the Footballer, who has terminated the Contract unilaterally without just reason in the way different of this contract, in

the form of the fine in amount of UAH equivalent of 500 000,00 (five hundred thousand) US Dollars, the claims are made to reimburse to the club of the amounts paid by it to the footballer and also to reimburse losses (art. 22 of the civil code of Ukraine), including those that were carried by the club for acquisition and payment for services of other footballer, connected with non-fulfilment by the footballer of his obligations according to this contract in result of his termination.”

5. On 24 February 2022, Russia invaded the Ukraine.

6. According to the club, on 25 February 2022, the player left Ukraine.

7. On 11 July 2022, the Claimant put the Respondent in default and requested payment of USD 45,000, corresponding to the monthly salaries of February until June 2022, until 26 July

2022.

8. On 20 August 2022, the club proposed a “termination agreement” to the player, according to which the contractual relationship was terminated and no compensation was paid. Such draft also included a clause according to which the parties have “no more claims” against each other and no further payments would be due. The player rejected such proposal.

9. On 20 August 2022, the club also proposed a different termination agreement, according to which the club would pay a compensation of EUR 2,455 until 15 September 2022 and the employment relationship would be terminated. The player rejected such proposal.

10. On 31 August 2022, the player terminated the contract with the club based on the outstanding remuneration due. pg. 3

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11. On 15 September 2022, the player signed an employment contract with Italian club, Monopoli 1966, valid as from 15 September 2022 until 30 June 2023, including a total salary of EUR 31,000 (EUR 3,100 per month). Said contract was terminated on 29 September 2022.

12. On 1 January 2023, the player signed an employment contract with the Canadian club, York United FC, valid as from 1 January 2023 until 31 December 2023, including a total salary of Canadian Dollar (CAD) 37,500 (approx. EUR 25,000).

II. Proceedings before FIFA

13. On 15 September 2022, 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

14. In his claim, the Claimant requested payment of the following monies: - EUR 56,000 as outstanding remuneration, corresponding to the months of February 2022 until August 2022 (7x EUR 8,000), plus 5% interest p.a. as of the due dates; - EUR 260,000 as compensation for breach of contract, corresponding to the residual value of the contract, plus 5% interest p.a. as of the due date.

15. In this framework, the player argued that the club failed to remit his outstanding remuneration after his default notice and that he did not agree to terminate the contract to the proposed conditions.

16. Moreover, the Claimant maintained that he never received a request to resume work after the club restarted its football activities.

17. Therefore, the player held having had just cause to terminate the contract on 31 August

2022. b. Position of the Respondent

18. In its reply, the Respondent rejected the player’s claim and pointed out that it informed its foreign players about the contractual situation in connection with the Russian invasion and the amendment of the RSTP by FIFA.

19. The club submitted copies of two undated letters addressed to the player, according to which the contract was deemed suspended as from 24 February 2022 until 30 June 2022. pg. 4

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20. Furthermore, the club maintained having informed the player that

• “the club does not refuse to pay the debt that exists until February 24, 2022 and will make payments after the situation stabilizes, martial law is lifted and you are able to come to the club's location.” - “Notwithstanding the provisions of these regulations and unless otherwise agreed between the parties, a contract of an international dimension between a player or a coach and a club affiliated to the UAF can be unilaterally suspended until 30 June 2023 by the player or the coach, provided that a mutual agreement with the club could not be reached before or on 30 June 2022.” - “we do not object on free temporary transfer (loan) of our football player Lassana Faye

(DoB 15/06/1998) to any club on the period till 30/06/2023.”

21. The club further stated that the safety of the players had absolute priority during this extraordinary period.

22. Moreover, the Respondent argued that the player proposed to unilaterally terminate the contact, and therefore the club made the proposals on file, which were subsequently rejected.

23. The club held that the player received his full salary for January 2022 even though he only joined on 14 January 2022.

c. Replica of the Claimant

24. In his replica, the Claimant reiterated his position.

25. In particular, the player denied having received the two letters submitted by the club. In this regard, the player pointed out that those letters are undated.

26. The player held that he never accepted the alleged contractual suspension.

27. In this framework, the Claimant insisted that even if the suspension should be considered, the club failed to remit the salaries for February, March, July and August 2022.

28. The player referred to the wording of annexe 7 of the RSTP according to which a contract could be unilaterally terminated if no mutual agreement was reached. The player held that since no such agreement was reached, the contract was still valid.

29. In this context, the player argued that he terminated the contract with just cause on 31

August 2022, due to outstanding remuneration of more than two months. pg. 5

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d. Duplica of the Respondent

30. In its duplica, the Respondent held that the player left Ukraine on 25 February 2022 and therefore terminated the contract without just cause.

31. According to the Respondent, it requested the player to return to the club.

32. On account of the above, the club lodged a counterclaim against the player, requesting payment of USD 500,000 as compensation for breach of contract, in accordance with art. 6.4 of the contract.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

33. 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 15 September 2022 and submitted for decision on 24 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.

34. 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 employment-related dispute with an international dimension between a player and a club.

35. 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 15 September 2022, the July 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. pg. 6

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36. In this framework, taking into account that the Respondent lodged a counterclaim against the Claimant with its duplica dated 27 February 2023, the DRC referred to art. 21 par. 2 of the Procedural Rules, which reads as follows: “The respondent(s) may submit a counterclaim with their response to the claim. A counterclaim shall have the same form as a claim and shall be submitted within the same time limit as that for the response to the claim” (emphasis added).

37. In this context, the Chamber pointed out that the club failed to submit its counterclaim with its reply dated 31 October 2022, but only did so in the final comments. Taking into account the clear provision in the Procedural Rules, the DRC had no other choice that to decide that the counterclaim is inadmissible.

b. Burden of proof

38. 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 Transfer Matching System (TMS).

c. Merits of the dispute

39. 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

40. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that the parties strongly dispute that the player had just cause to terminate the contract.

41. In this context, the Chamber acknowledged that its task was to decide if the player had just cause to terminate the contract or not, and to decide on the consequences thereof.

42. The members of the DRC noted that the Claimant held having terminated the contract with just cause due to outstanding remuneration. pg. 7

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43. The Chamber also acknowledged that the Respondent argued that the safety of the players had priority and that it informed the player about the suspension of the contract. However, in its duplica, the Respondent argued differently and alleged that the player breached the contract by leaving Ukraine on 25 February 2022.

44. Taking into account the special circumstances of the matter at hand, the Chamber pointed out that undisputedly, the player left Ukraine on 25 February 2022 and did not return to the club.

45. At the same time, the members of the DRC established that the club failed to take a clear position to immediately call the player back, specifically when it became evident for the club that the player had a different understanding of the status of the contract and that the player expected to receive remuneration during his absence.

46. Moreover, and due to the extraordinary circumstances of this very specific case, the Chamber also took into account the content of the regulations in force at the time of the events (March 2022 edition of the regulations), which stated in Annexe 7, Art. 2 par. 1: “Notwithstanding the provisions of these regulations and unless otherwise agreed between the parties, a contract of an international dimension between a player or a coach and a club

affiliated to the UAF shall be considered automatically suspended until 30 June 2022.”

47. Taking into account the above, the DRC concluded that the contract between the Claimant and the Respondent was indeed suspended as of March until 30 June 2022, in accordance with the applicable regulations at the time of the events.

48. However, the Chamber highlighted that on analysis of the documentation on file it appears that the player failed to show any willingness to find an amicable solution to the matter and could have taken more efforts to find an amicable solution, which was in no doubt also partly motivated by his wish not to return to Ukraine following the start of the war.

49. Taking all those special circumstances of the unique case at hand into account, the DRC concluded that the player had no just cause to terminate the contract on 15 September

2022.

50. In line with the above, the DRC pointed out that the player’s request for compensation had to be rejected. ii. Consequences

51. The Chamber observed that the financial obligations deemed as outstanding in the present case correspond to 3 monthly salaries for the months of February 2022, July 2022 and August 2022. pg. 8

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52. 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 claimed as outstanding under the contract, in total EUR 24,000, as detailed above.

53. 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 the relevant due dates 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 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. pg. 9

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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. 10

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IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, LASSANA FAYE, is partially accepted.

2. The Respondent, FC Rukh Lviv, must pay to the Claimant the following amount(s): - EUR 8,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 2022 until the date of effective payment; - EUR 8,000 as outstanding remuneration plus 5% interest p.a. as from 1 August 2022 until the date of effective payment; - EUR 8,000 as outstanding remuneration plus 5% interest p.a. as from 1 September 2022 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. The counterclaim of the Respondent is inadmissible.

6. 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.

7. 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.

8. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 11

REF. FPSD-7479

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. 12