FIFA - Decisión disputa Yao 19062023

REF. FPSD-9900

Decision of the Dispute Resolution Chamber passed on 19 June 2023 regarding an employment-related dispute concerning the player Kouassi Bernard Yao

COMPOSITION:

Clifford J. HENDEL (USA & France), Deputy Chairperson Khalid AWAD ALTHEBITY (Saudi Arabia), Member Alexandra GOMEZ BRUINEWOUD (Uruguay & the Netherlands), Member

CLAIMANT:

Kouassi Bernard Yao, Ivory Coast Represented by Deep Ray

RESPONDENT:

TS Galaxy FC, South Africa Represented by Eben Koen pg. 2

REF. FPSD-9900

I. Facts of the case

1. The relevant parties to this dispute are the Ivorian player, Kouassi Bernard Yao (hereinafter: the player or the Claimant); and the South African club, TS Galaxy FC (hereinafter: the club or the Respondent).

2. Before the facts described below took place and in accordance with the information available in the FIFA Transfer Matching System (TMS), the player was playing in India.

3. On 27 December 2022, the club addressed the player a Letter of Invitation valid for one month i.e., from 1 until 31 January 2023 (hereinafter: the Invitation).

4. On 17 January 2023, the player and the club concluded a standard contract of the National Soccer League (NSL) titled “Fixed Term Contract of Employment for Professional Footballers” valid as from 1 January 2023 until 30 June 2025 with a possible extension for the 2025/2026 season (hereinafter: the NSL Contract).

5. According to the Annexe A to the NSL Contract, the club undertook to pay the player the

following concepts: a. USD 3,000 net as salary as from 1 February 2023 until 30 June 2024, payable by the last day of each month; b. USD 3,300 net as salary for the 2024/2025 season, payable by the last day of each

month; c. USD 15,000 “for 10 league goals scored per season and [USD] 500 for every league goals thereafter”; d. “match bonuses as per the club’s bonus structure”; e. “return air tickets to Ivory Coast per season”; f. “pay and assist [the player] with South African visas and work permit applications at the cost of the Club”; and g. “furnished apartment for the duration of the Agreement”.

6. Clause 14 of the Annexe A of the NSL Contract reads as follows: “The Parties further agree that the special nature of professional football and the need for excellent relationships is such that if [the player] does not perform to the standards desired by the club or is found guilty of any misconduct of any nature whatsoever including ill-discipline or absenteeism, termination will be appropriate. Accordingly, in pg. 3

REF. FPSD-9900 the event that the club terminates this Agreement in terms of this clause 14, the club will pay [the player] compensation equal to a 1 (one) monthly salary, which [the player] hereby accepts in full and final settlement of any and all claims of whatsoever nature he might otherwise have had against the club consequence upon the termination of his employment and the club will provide [the player] with this clearance certificate. In particular, [the player] or any person on behalf of [the player] shall have no claim arising out of any alleged unfair dismissal or unfair termination of employment, or unfair labour practice, in terms of the Labour Relations Act 66 of 1995”.

7. Clauses 16 and 17 of the Annexe A of the NSL Contract read as follows: “16. This Agreement is subject to the fulfillment of the suspensive conditions that, on or before 31 January 2023, [the player] is: 16.1. issued with the international clearance certificate by the relevant international football association in the country in which he was last registered;

16.2. issued with the South African work permit by the South African Department of Home Affairs as well as the international clearance certificate by the relevant football regulatory body in terms of the FIFA Rules and Regulations.

17. Should the suspensive conditions referred to in clause 16 above not be fulfilled on or before 31 January 2023 or such a later date as the club may agree, this Agreement shall be of no force or effect”.

8. According to the NSL Handbook, complimentary to the NSL Contract, the following provisions apply as to the registrations of players: “31.5. Save for Players whose registration is expressly permitted to take place outside of the prescribed registration periods, players may only be registered during a registration period, which periods are as follows: 31.5.1. The first registration period will be from 1 July until 31 August, provided that in the event that the Season is extended by the Executive Committee beyond 30

June, then the aforesaid period will be from the first da after the end of the extended Season until 31 August; 31.5.2. The second registration period will be the month of January; 31.5.3. Should the last day of the first or second registration period fall on a Saturday, Sunday, or public holiday, the registration period will be extended to include the next day and will end at midnight on the last da of the registration period”. pg. 4 REF. FPSD-9900 [...] 31.8. Save in respect of the last day of the registration period, when a Member Club applies to register a Player it will submit the following items to the League during office hours (between 08h30 and 17h00 on weekdays): 31.8.1. An original completed registration form signed by the Member Club and the Player; 31.8.2. A certified and dated cop of the relevant page of the Player's passport or identity document which has a clear photograph of the Player and the Player's name;

31.8.3. A completed prescribed medical certificate signed by a medical practitioner; 31.8.4. 2 (Two) recent colour passport-sized photographs of the Player with the Player's name on the back of each; 31.8.5. In cases where the Player is a professional: 31.8.5.1. 2 (two) copies of the Player's complete employment contract, with the Member Club in separate sealed envelopes; 31.8.5.2. a cop of the front page of the Player's employment contract which shows the start and end dates of the contract and an options to extend the contract and must be signed in full by the Member Club, the Player and the Player’s parent or legal guardian if the Player is a minor; 31.8.6. In cases where the Player was previously registered as an amateur a clearance certificate from the Player's previous club or an order declaring the Player a free agent; 31.8.7. In cases where the Player is not a South African citizen or permanent resident proof that the Player is lawfully entitled to be employed in South Africa for the full duration of the contract with the Member Club which is submitting the registration. In cases where a work permit is not received before the closure of a registration transfer period it will be sufficient to provide proof of application for the work permit, but the Player’s card will only be issued and the Player will only become eligible to play once the work permit has been received b the League; 31.8.8. In cases where a Player was previously registered for a club in another country, an International Transfer Certificate; pg. 5 REF. FPSD-9900 31.8.9. In addition, in cases where the Player was previously registered as a professional with a Member Club, the following must be submitted to the League where applicable: 31.8.9.1. In the event of a transfer, a cop of the written transfer agreement and a clearance certificate; or 31.8.9.2. In the event of a loan, a cop of the written loan agreement and a

loan clearance certificate, or 31.8.9.3. In the event of a terminated or expired contract a clearance certificate; or 31.8.9.4. An order declaring the Player a free agent. 31.9. Notwithstanding the aforegoing, on the last day of any registration period including a CAF registration period a Member Club will be entitled to submit the items listed above until midnight (24:00) on that day Member Clubs will furthermore be entitled, only on the last day of a registration period, to submit copies of the items listed above by midnight on the last da of the registration period and to deliver full compliant documents (as specified above) to the League within a period of 3 (three) days thereafter, but the Players card will only be issued and the Player will only become eligible to play once the compliant documents have been received b the League. It will be misconduct on the part of a Member Club to submit copies and then not deliver compliant documents”.

9. On 27 January 2023, the player reached out to the club’s president and asked whether they had already requested his International Transfer Certificate (ITC). In reply, the club confirmed having acted accordingly.

10. Also on 31 January 2023, the All-Indian Football Federation (AIFF) wrote to the club and stated inter alia as follows: “We would like to inform you that the information provided by you for Mr. Yao Kouassui Bernard is correct, but due to your registration period expiring on January 21, 2023, and the player’s status with his former club being amateur, we are unable to deliver the ITC of the player as the status of the player from amateur to professional can only change in transfer window.

Therefore, you are requested to send an email to FIFA TMS requesting their intervention in the matter and explaining the player’s entire situation to them. Please get in touch with them, as they are the right people to contact regarding this matter. Please let us know in case anything needs to be done from our side”.

pg. 6

REF. FPSD-9900

11. According to the club, the transfer could not be properly concluded because the player wrongly informed that he was registered at the time with the amateur Indian club, SC Bengaluru. A copy of a release letter issued on 6 December 2022 was filed by the club and was allegedly forwarded by the player.

12. Between 31 January and 2 February 2023, the player, the club, and the representatives of South African Football Association (SAFA) and AIFF exchanged messages regarding the issuance of the player’s ITC and the registration steps in the TMS.

13. In accordance with the information available in the TMS, on 1 February 2023: • the club entered a transfer instruction to engage the player permanently (TMS ref. no. 641781). The player’s former club was the Indian amateur club, Muthoot Football Academy; • the SAFA requested the player’s ITC from AIFF; and • FIFA informed the parties that there were “validation issues that need to be resolved before the transfer can proceed” insofar as the player was “out of contract transferring prior to the next registration period”.

14. On 4 February 2023, the AIFF acknowledged receipt of the correct information by the club and SAFA, however informed that the ITC could not be issued due to the closure of the registration period (i.e., the transfer window).

15. On 9 February 2023, the club’s president wrote the following message to the player: “Hello Bernard, Njabulo our manager will arrange. However, I saw the email and they say no. So there’s nothing else that can be done right now as the contract cannot start without the fifa ITC.

Unfortunately you have to return to Ivory Coast as soon as possible and will see at the end of the season”.

16. In February 2023, the player and a club representative also exchanged messages via the electronic application WhatsApp regarding the issue with his visa.

17. On 18 February 2023, the player informed the club via email that his visa expired on 5

February 2023; hence he would leave the country. Consequently, he requested the club to (i) extend his work permit, (ii) register him, and (iii) send him his flight tickets to re-join the team.

18. On 8 March 2023, the player put the club in default. Contextually, he recalled the problems with the issuance of his visa and, in addition, requested payment of USD 6,000 (i.e., the salaries of January and February 2023) within 10 days. pg. 7

REF. FPSD-9900

19. On 24 March 2023, the player sent the club a reminder. He requested the club (i) to enable him being “reinstated as soon as possible by providing him with flight tickets and work visa”; and (ii) make payment of his outstanding salaries. He granted the club 5 additional days to remedy its breaches.

20. On 30 March 2023, the player acknowledged that no reply had been received to that date.

Thus, he notified the club of the termination of the NSL Contract, claiming just cause.

21. Also on 30 March 2023, the club replied to the player and stated as follows: “Please be advised that the agreement between [the club] and [the club] never took effective for failure of the issuance of his International Clearance Certificate by 31 January 2023. Accordingly, your purported notice of termination of the agreement is defective in law. This is [the club]’s position which will be well articulated in the answers to your statement of claim”.

22. The player informed that he remained unemployed following the termination of the NSL

Contract.

II. Proceedings before FIFA

23. 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

24. In his claim, the player argued that he entered into a valid and binding contract with the club, which should be duly enforced. In particular, he pointed out that the precedent conditions included in clause 16 of the NSL Contract were not applicable per the wellestablished jurisprudence of the FIFA Dispute Resolution Chamber (DRC).

25. Given the above, the player alleged that the conduct of the club, failing to obtain his ITC and register him, ultimately forced him to terminate the NSL Contract. In his words, “the irresponsible behavior of the Club which had already caused much damage to the Player professionally, financially, and mentally, forced him to seek the path of termination.”

26. Consequently, the player requested to be awarded the following amounts: • USD 9,000 as outstanding remuneration, corresponding to the salaries of January, February, and March 2023 plus 5% interest p.a. as from the respective due dates; • USD 84.600 as compensation for breach of contract, plus 5% interest as from 1 April 2023. pg. 8

REF. FPSD-9900

b. Position of the club

27. On 19 May 2023, the club filed its reply to the claim of the player.

28. In its reply, the club thoroughly explained the exchanges and unsuccessful attempt to register the player in the TMS. In its view, the registration failed because the player was indeed registered with Muthoot Football Academy and his name had been miswritten in the system.

29. Consequently, the club alleged that the condition precedent could not be completed within the deadline established in clause 16 of the NSL Contract, therefore it was “of no force or effect”. The club highlighted that the contracts should be respected (pacta sunt servanda), as well as referred to Swiss Law and the jurisprudence of FIFA and the Court of Arbitration for Sport (CAS) in support of its argumentation.

30. In parallel, the club argued that the player, his previous clubs, SAFA and AIFF breached their obligations and rendered the registration of the player impossible, as follows, quoted verbatim: “107.1 the Player advising the Respondent, incorrectly, that his last club was SC Bengaluru; 107.2 the Player providing the Respondent with the Bengaluru Clearance, and advising that that is the appropriate document the Respondent must use to acquire the Claimant’s ITC; 107.3 the Player not advising the Respondent that he had been with Muthoot Football Academy, nor that Muthoot had registered him on TMS; 107.4 the Player only advising the Respondent of Muthoot’s involvement in the facts at 00:20 on 1 February 2023, after the registration window and window to request the ITC had closed; 107.5 SAFA not displaying the necessary diligence in only attempting to request the ITC on 31 January 2023; 107.6 the AIFF not assisting the parties in obtaining the ITC and ensuring Muthoot’s assistance; 107.7 the AIFF only responding to the Respondent and SAFA’s requests for assistance on 1 February 2023, after the registration window had closed; 107.8 the AIFF neglecting to inform the parties of Muthoot’s involvement; and pg. 9

REF. FPSD-9900 107.9 Muthoot registering the Claimant under an incorrect name, leading to the Respondent being unable to find him on TMS”.

31. The club concluded inter alia as follows, quoted verbatim: “113 Notwithstanding the legal submissions supra, the Respondent wishes nevertheless to respond to the factual version which the Claimant has put to the FT. 114 As to the Claimant’s status on arriving at the Respondent: 114.1 The Claimant avers that he had made the Respondent aware of his status as an amateur, and that the Respondent no doubt had the means to conduct a due

diligence to identify what the Claimant’s actual status was; 114.2 The Respondent denies the Claimant’s averments. From the evidence supra it is clear that the Respondent did do its due diligence in respect of ascertaining the Claimant’s status. Not only was the Claimant entitled to, in good faith, rely on the information provided by the Claimant, but the Respondent could not have discovered the involvement of Muthoot Football Academy on TMS, as Muthoot Football Academy has misspelt the Claimant’s name in registering him. 115 As to the provision of the Claimant’s Contract: 115.1 the Claimant avers that the Respondent – in bad faith – refused to provide the Claimant with a copy of the Contract; 115.2 The Respondent denies this averment. Upon signature of the Contract, the Respondent handed the Claimant a copy of the Contract. 116 As to the release letter from Muthoot Football Academy: 116.1 the Claimant avers that the Respondent, on 31 January 2023, requested the Claimant to provide him with a release letter from his former club. The Claimant avers that he then promptly obtained a release letter from Muthoot Football Academy; 116.2 The Respondent denies this averment. The Respondent did not, on 31 January 2023, request a release letter from the Claimant. Rather, the Respondent requested that the Claimant ensure that SC Bengaluru accept the TMS instruction. Further, the Claimant did not “promptly” provide a release letter from Muthoot Football Academy. As is evidenced from Exhibit 6, the Claimant only sent the release letter after the closure of the registration window. Moreover, the Claimant could have – at any time that he was with the Respondent – acquire this release letter. However, pg. 10 REF. FPSD-9900 the Claimant chose to allow the Respondent to labour under the false impression

that SC Bengaluru was the Claimant’s previous club. 117 As to knowledge of Muthoot Football Academy: 117.1 the Claimant avers that the Respondent was aware that Muthoot Football Academy was the Claimant’s previous club, and that the Respondent chose to erroneously request an ITC from SC Bengaluru; 117.2 the Respondent denies these averments. As is evidenced in Exhibit 6, the Respondent only became aware of Muthoot Football Academy at 00:20 on 1 February 2023. Moreover, the Respondent lodged its documents on TMS on 25 January 2023. At that stage, the Respondent did not even know that Muthoot Football Academy was involved”.

32. Based on all the abovementioned considerations, the requests for relief of the club were as follows, quoted verbatim: “123.1 dismiss this case for lack of a legal basis; 123.2 order that the Contract never came into force and effect due to the suspensive conditions underpinning same being unfulfilled; and 123.3 order that the Contract was not breached and/or terminated by either Party. 123.4 Order that the Claimant pays the Respondent’s costs.”

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

33. First of all, the DRC (hereinafter also referred to as Chamber) 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 12 April 2023 and submitted for decision on 19 June 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 par. 1 lit. b) of the Regulations on the Status and Transfer of Players (May 2023 edition), the DRC is competent to deal with the matter at stake, which concerns an employment-related pg. 11 REF. FPSD-9900 dispute with an international dimension between an Ivorian player and a South African 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 (May 2023 edition), and considering that the present claim was lodged on 12 April 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

36. 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

37. 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

38. The foregoing having been established, the Chamber moved to the substance of the

matter, and took note of the fact that it consists of a claim for breach of contract lodged by the player against the club in connection with the employment relationship previously maintained between them.

39. In this context, the Chamber was duly observant that the following facts remained undisputed between the parties: • on 17 January 2023, the parties concluded the NSL Contract; • both SAFA’s and NSL’s registration periods ended on 31 January 2023; • the player could not be registered within the abovementioned deadline; pg. 12

REF. FPSD-9900 • the club’s president informed the player via WhatsApp that, due to the lack of registration, the NSL Contract could not come into effect; • on 18 February 2023, the player left South Africa due to issues with his visa; and • on 30 March 2023 and after having put the club in default on 8 and 24 March 2023, the player officially terminated the NSL Contract claiming just cause.

40. Against this background, the DRC acknowledged that its task is to determine the following:

a. Provided that the player could not be registered within 31 January 2023, did the NSL Contract enter into force? b. If affirmative, was the NSL Contract terminated with just cause? c. What are the consequences that follow?

41. The Chamber moved then to the analysis of each topic in turn.

a. Did the NSL Contract enter into force?

42. As a departure point, DRC acknowledged that the parties strongly dispute whether the NSL Contract indeed entered into force considering that the player was never registered with the club.

43. The NSL Contract included conditions precedent establishing that its validity was subject to the issuance of (i) the player’s ITC i.e., the registration of the player with the club; and (ii) a South African work permit. For ease of reference: “16. This Agreement is subject to the fulfillment of the suspensive conditions that, on or

before 31 January 2023, [the player] is: 16.1. issued with the international clearance certificate by the relevant international football association in the country in which he was last registered; 16.2. issued with the South African work permit by the South African Department of Home Affairs as well as the international clearance certificate by the relevant football regulatory body in terms of the FIFA Rules and Regulations.

17. Should the suspensive conditions referred to in clause 16 above not be fulfilled on or before 31 January 2023 or such a later date as the club may agree, this Agreement shall be of no force or effect”. pg. 13

REF. FPSD-9900

44. While considering the above, the Chamber initially recalled art. 18 par. 4 of the Regulations which sets forth: “The validity of a contract may not be made subject to a successful medical examination and/or the grant of a work permit”. In addition, it highlighted that the Commentary to the FIFA RSTP (p. 201) reads inter alia as follows in this respect: “If the parties sign the contract without having confirmed that any work permit or visa will be granted, and if the competent authorities then refuse to grant the necessary authorisations, the contract will be considered valid and binding, and if it is terminated by the club because of the state authorities refusal, the termination will be deemed to have been without just cause. Any provision to the contrary included in the contract

(e.g. a clause making the issue of a work permit or visa a condition precedent) will be deemed invalid; the contract as a whole will remain valid” (emphasis added).

45. Along the same lines, the Chamber recalled that its jurisprudence is also solid to establish that the validity of an employment contract cannot be made conditional upon the execution of (administrative) formalities, such as, but not limited to, the registration procedure in connection with the international transfer of a player, which are of the sole responsibility of a club and upon which a player has no influence. As the club is supposedly

interested in acquiring the rights of the player and in benefiting from his services, it is also expected to act accordingly and execute the administrative formalities in view of obtaining, for instance, the player’s ITC and his subsequent registration with the engaging member association. Consequently, the Chamber determined that the registration or not of the player with the relevant member association does not exempt the club of complying with the financial terms of the contract.

46. On this note, the DRC concluded that: • conditioning the NSL Contract to the issuance of the South African work permit is contra legem, hence such provision is null and void; and • as to the issuance of the ITC, it is the obligation of the club to ensure that all administrative formalities were met for the player to be able to play, as per the relevant employment contract (i.e., the NSL Contract). In other words, it is the club’s responsibility to fulfil all administrative tasks to obtain the player’s ITC and allow his registration with the new member association within the corresponding registration window. This conclusion is without prejudice of the assessment as to the justice of a subsequent termination of a contract based on the nonregistration and the responsibility of the parties therein involved (i.e., the player, the club(s), and the relevant federations).

47. In light of the above, the Chamber considered that the NSL Contract includes all the essentialia negotii and constitutes a valid and binding contract to the parties. Likewise, in line with the Regulations and the well-established jurisprudence of the DRC, such validity pg. 14

REF. FPSD-9900 cannot be hindered by the conditions precedent listed in its clause 16 insofar as they go against the spirit of the regulations and, in particular, the principle of contractual stability.

48. Therefore, the DRC decided that clauses 16 and 17 of the NSL Contract shall be deemed null and void, and the argumentation of the club in this regard was rejected.

b. If affirmative, was the NSL Contract terminated with just cause?

49. Having established that the NSL Contract was valid and binding to the parties, the Chamber turned to the issue of the termination and the just cause.

50. In this context, the DRC found it decisive that: • the player proactively reached out to the club within January 2023 in order to obtain information as to his registration; • despite having signed the NSL Contract on 17 January 2023, the evidence on file shows that the club only initiated the communication and administrative proceedings to engage the player and obtain his ITC on the last day of the registration period (i.e., 31 January 2023); • whereas the club accused the player of providing untrue information regarding his previous employer, the club did not advance any proof of his alleged bad faith and/or of having requested any type of clarification to the player. On the contrary, the club filed copies of emails exchanged with previous clubs of the player and the federations (i.e., AIFF and SAFA) when the deadline for registration was soonto-expire or even after it was finished; • upon being informed that the player could not be registered because of the closure of the registration period, the president of the club expressly informed him that the NSL Contract was not valid, hence suggested that the club would not pursue their employment relationship. In addition to such confirmation via WhatsApp, the lack of intention by the club to retain the player’s services was also corroborated by the facts that (i) it failed to provide further guidance to the player and limited itself to argue that the NSL Contract had no legal effect; (ii) it failed to assist the player with his visa’s issue and concurre