FIFA - Decisión disputa Sanogo 26052023

REF. FPSD-8551

Decision of the Dispute Resolution Chamber passed on 26 May 2023 regarding an employment-related dispute concerning the player Yaya Sanogo

COMPOSITION:

Frans DE WEGER (The Netherlands), Chairperson Mario FLORES CHEMOR (Mexico), member Roy VERMEER (The Netherlands), member

CLAIMANT:

Yaya Sanogo, France Represented by Mr. Ludovic Deléchat

RESPONDENT: Raja Club Athletic, Morocco Represented by Mr. Jihad Agouram and Mr Kawtar Jalal pg. 2

REF. FPSD-8551

I. Facts of the case

1. The parties to the dispute are the French player, Yaya Sanogo (hereinafter: the Player or the Claimant) and the Moroccan club, Raja Club Athletic (hereinafter: the Club or the

Respondent).

2. On 26 July 2022, the Club provided the Player with a document titled “offre: YAYA SANOGO”

(hereinafter: the offer).

3. The 1st paragraph of the offer reads as follows: “Par la présente Raja Club Athletic confirme son intérêt pour le joueur YAYA SANOGO né le 27 janvier 1993 de Nationalité Français et propose les conditions suivantes de […]”.

Freely translated to English: Raja Club Athletic hereby confirms its interest in the player YAYA SANOGO born on 27

January 1993 of French nationality and offers the following conditions of […].

4. In accordance with the offer, the Club would undertake to pay the Player, the following amounts: - 2022/2023 season: EUR 300,000 payable in 4 instalments, EUR 75,000 at the beginning of the season, EUR 75,000 in December 2022, EUR 75,000 in March 2023, and EUR 75,000

at the end of the season. - 2023/2024 season: EUR 300,000 payable in 4 instalments, EUR 75,000 at the beginning of the season, EUR 75,000 in December 2023, EUR 75,000 in March 2024, and EUR 75,000 at the end of the season. - EUR 10,000: Championship winner’s bonus - EUR 10,000: Bonus of the Coupe du Trône. - EUR 15,000: Champions League winner's bonus - EUR 15,000: Winner bonus of the Coupe arabe - EUR 15,000: 15 goals - EUR 10,000: 10 assisted goals - Housing allowance

5. The last paragraph of the offer reads as follows: “Nous vous remercions d’avance pour votre accord sur cette proposition et restons à votre entière disposition”.

Freely translated to English: We thank you in advance for your agreement to this proposal and remain at your entire disposal. pg. 3

REF. FPSD-8551

6. It is to be noted that the specimen of the offer provided by the Player is allegedly signed by the Club and the Player but does not contain any designated space for the Player’s signature or expression of acceptance.

7. On 21 November 2022, the Player sent the Club the following e-mail and contained as

attachment the offer only signed by the Club: “Cher Monsieur, Je me réfère au contrat que nous avons signé, ci-joint, et souhaitais, par la présente, des informations à ce sujet puisque vous ignorez tout contact avec moi depuis la signature ”.

Freely translated to English: Dear Sir, I refer to the contract we have signed, enclosed, and hereby wish to obtain some information on this subject, since you have had no contact with me since signing it.

8. On 26 November 2022, the Respondent replied to the Claimant as follows:

“Bonjour Monsieur,

Pouvez-vous nous envoyer le contrat signé entre les deux parties ? Le fichier joint au présent e-mail n’est qu’une offre de contrat ”.

Freely translated to English: Good afternoon, sir, Can you send us the contract signed by both parties?

The file attached to this e-mail is only a contract offer".

9. On 28 November 2022 at 12h57 local time, the Claimant replied to the Respondent as follows and contained as attachment the offer only signed by the Club: “Vous trouverez une nouvelle fois, en annexe, la version signée du contrat de travail que nous avons conclu.

Merci de m'informer des prochaines démarches. Je trouve irrespectueux cette situation. J'ai signé un contrat et ne reçoit aucune nouvelle. Je vous demande également de bien vouloir me payer déjà les salaires impayés. ” Freely translated to English: Please find attached the signed version of the employment contract that we have signed. Thank you for informing me of the next steps. I find this situation disrespectful. I have signed a contract and have received no news. I would also ask you to kindly pay me the unpaid salaries already.

10. On the same date 28 November 2022 at 13:04 local time, the Respondent replied to the Claimant to his e-mail dated 28 November 2022 at 12h57 as follows: pg. 4

REF. FPSD-8551 “Le fichier envoyé n’est en aucun cas un contrat de travail, il s’agit comme précisé dans mon précédent e-mail, simplement d’une offre à laquelle aucune suite n’a été actée ”.

Freely translated to English: The file sent is in not an employment contract. As stated in my previous e-mail, it is simply an offer that has not been acted upon.

11. On the same date 28 November 2022 at 13:33 local time, the Claimant replied to the

Respondent as follows: “C’est un contrat de travail valable signé qui contient tous les éléments constitutifs d’un contrat.

Votre comportement est encore une fois inadmissible. Dorénavant, mon avocat va vous contacter ”.

Freely translated to English: It's a valid, signed employment contract that contains all the constituent elements of a contract. Your behaviour is once again unacceptable. From now on, my lawyer will contact you.

II. Proceedings before FIFA

12. On 13 December 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

13. The player claims having concluded with the Club a valid employment contract, however, the Club stopped all communication with the Player who tried to communicate with the Club without success. The Claimant argues that the Club breached the contract, and he is entitled to compensation.

14. The Claimant indicates that he rejected other offers from other clubs in “the same period of time and therefore lost opportunities as he genuinely thought he had concluded an employment contract with the Club”.

15. The Claimant further indicates that: “The Player then suffered from mental health issues and had to be followed by a doctor. He had been taking medicines since August to treat his mental sickness. The situation he faced with the Club did not help to heal, to the contrary his mental health had been deteriorated”.

16. The Claimant requests the following relief: “1. The claim of the Claimant shall be accepted in its entirety. pg. 5

REF. FPSD-8551 2. [The Respondent] shall be obliged to pay to the Claimant the amount of EUR 600,000 net as compensation for breach of the employment contract, plus 5% interest per annum over said amount as of the date of termination of the employment contract, i.e. on 27 July 2022.

3. Art. 24bis of the FIFA RSTP shall be applied in the present matter. Consequently, a ban from

registering any new players, either nationally or internationally, for two entire and consecutive registration periods shall be applied against [the Respondent]”. b. Position of the Respondent

17. In its reply, the Respondent indicates first that the document sent to the Player was an offer, which the Player never replied to.

18. Moreover, the Club argues that the Player did not sign the offer on 26 July 2022. In fact, the Player contacted the Club 4 months later to the Respondent via e-mail in November 2022 with the attachment of the offer unsigned by the Player. Consequently, the Respondent concludes that until 26 November 2022, the Player did not sign or accept the offer.

19. The Respondent indicates that the terms of the offer are clear and it refers to a proposal and not a contract: in particular it referred to the wording of the offer such as “confirm its interest”, “offer the following conditions” and “we thank you in advance for your agreement to this proposal”.

20. The Respondent states that a contract is not concluded if the offer is not accepted. In this context, the Respondent refers to Swiss law and Moroccan law in case of offers, in which the acceptance of an offer should be performed in a reasonable deadline which was not the case, as according to the Respondent, the Player did not accept the offer until November 2022. The Respondent further states that Moroccan law applies to the substance of the case and thus referred to the Moroccan civil law in terms of offers which confirms that the acceptance of the offer did not occur.

21. The Respondent requests that the claim shall be rejected, and the Player shall be ordered to pay the procedural costs. The Respondent further requests MAD 200,000 as legal costs.

c. Rejoinder of the Claimant

22. The Claimant failed to submit his comments to the statement of defense filed by the Respondent within the stipulated timeframe provided.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework pg. 6

REF. FPSD-8551

23. 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 13 December 2023 and submitted for decision on 26 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.

24. 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 (May 2023 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 from France and a club from Morocco.

25. 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 (May 2023 edition), and considering that the present claim was lodged on 13 December 2022, the October 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

26. For sake of clarity, the Chamber remarked that the Respondent also referred in its response that Moroccan law is to be applicable as to the substance. In this respect, the Chamber wished to recall that when deciding a dispute before the DRC, FIFA’s regulations prevail over any national law chosen by the parties. In this regard, the Chamber

emphasised that the main objective of the FIFA regulations is to create a standard set of rules to which all the actors within the football community are subject to and can rely on. This objective would not be achievable if the DRC would have to apply the national law of a specific party on every dispute brought to it. By the same token, the DRC wished to point out that it is in the interest of football that the termination of a contract is based on uniform criteria rather than on provisions of national law that may vary considerable from country to country. Therefore, the Chamber deemed that it is not appropriate to apply the principles of a particular national law to the termination of the contract but rather the Regulations, general principles of law and, where existing, the Chamber’s well-established jurisprudence. b. Burden of proof

27. 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 pg. 7

REF. FPSD-8551 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

28. 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

29. 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 a club for alleged

non-execution of contract by the Club.

30. In brief, while the Player claims that he had a valid and binding contract with the Club, consisting of the offer sent by the club on 26 July 2022 and accepted by him on the same day, the Club deems that the offer clearly indicated that it was not to be considered as a contract and that the Player did not accept the offer until November 2022.

31. Subsequently, the DRC confirmed that the main issue in the present claim is to determine whether the offer can be considered as a valid and binding employment contract. In doing so, the Chamber started by recalling its well-established jurisprudence which dictates that, in order for an employment contract to be considered as valid and binding, apart from the signature of both the employer and the employee (or the corresponding proof of consent of both parties), it should contain the essentialia negotii of an employment contract, such as the parties to the contract and their role, the duration of the employment relationship and the remuneration payable by the employer to the employee.

32. From the arguments of the parties and the documentation on file, the Chamber was able to establish that: - The offer does not contain any designated space for the player’s signature or expression of acceptance. - As per the wording of the offer appears to be a unilateral offer, in particular: • Raja Club Athletic hereby confirms its interest […] and offers the following conditions of […]. • We thank you in advance for your agreement to this proposal and remain at your entire disposal […]. - The first communication on file from the Player to the Club following the issuance of the offer occurred only 4 months later in November 2022, while no previous notice or communication to state the contrary are on file. pg. 8

REF. FPSD-8551 - The offer contained in the emails dated 21 and 26 November 2022 from the Player to the Club were not signed by the Player.

33. Considering the above, the Chamber found of paramount importance that the

employment document (i.e., the offer) was only signed by the Club’s representative and did not even include the designated space for the player to insert his signature. In this respect, the Chamber concurred with the Club’s argumentation and considered that the disputed document was not meant to be a bilateral document (i.e., an employment contract), but solely a unilateral offer to the player.

34. The Chamber also found it noteworthy that the Player did not provide any evidence capable of demonstrating that any other document was ever concluded between the parties with a view to confirm that the conditions described in the offer were indeed validated. In light of these considerations, the Chamber concluded that the essential elements mentioned by the jurisprudence were not fully included in the document at the basis of the dispute and therefore the employment offer was not able to trigger the consequences of a labour relationship between the parties.

35. Moreover, the Chamber highlighted that no acceptance of the contract was provided by the Player before the emails dated 21 and 26 November 2022, thus the Chamber concluded that the Player was not interested in accepting said offer on a reasonable time, or to the very least has been incapable of demonstrating otherwise in accordance with the principle of the burden of proof.

36. On the basis of the foregoing, the Chamber concluded that the player could not meet his burden of proof to demonstrate that an employment relationship was ever initiated with the club and therefore his claim lacked any contractual basis whatsoever. Accordingly, the Chamber found that the claim must be entirely rejected.

d. Costs

37. 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.

38. 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.

39. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 9

REF. FPSD-8551

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Yaya Sanogo, is rejected.

2. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 10

REF. FPSD-8551

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. 11