From start to finish, Chelsea drove the story of 2023’s winter transfer window. Like many a good story, this one was well-organized. It began in north, where Chelsea spent €12M to purchase emerging striker David Datro Fofana from Norway’s Molde and flowed downstream to its conclusion in the south, where they handed Benfica €121M for midfielder Enzo Fernandez. But while Fernandez’s move became the window’s obsession, Fofana’s might be more interesting.
For a year prior, Abidjan City, a third division club in Fofana’s native Ivory Coast, had been insisting he broke a contract with them when he first signed for Molde. Their complaints ripened into breach of contract claims against Fofana, which, initially, the Ivorian federation and FIFA’s Dispute Resolution Chamber rejected. Both tribunals ruled that Fofana had not signed the alleged contract and, thus, City had no agreement to enforce.
But in December 2022, an Ivorian court found that Fofana did sign the contract. This has poured doubt over the earlier rulings and given City hope that their claims can be revived. Still, the legal path forward is unclear, with questions about jurisdiction, damages and evidence left to be answered.
BACKGROUND
David Datro Fofana – the player
By all indications, Fofana’s talent justifies the fight over his contract. In the 2022 season, the then-19-year-old scored 15 league goals in 24 games, as Molde won Norway’s Eliteserien for the second time in four seasons. In the 21st century, no Molde teenager struck more times in the league. And if this does not sound like much, Erling Haaland never gave the club more than 12.
The €12M Chelsea paid for Fofana is also a club record – for a player of any age. The previous mark was €5M, the fee Red Bull Salzburg paid in 2019 – for Haaland. So all told, while there may be doubts about Fofana’s legal case, there are not many about his potential on the field.
European clubs’ initial interest in Fofana
The player’s journey began in 2016, when a 14-year-old Fofana signed a “training contract” with Abidjan City.[1] The club followed up three years later by signing Fofana to a three-year professional deal.
According to reports, Fofana did well, both at City and on loan with Ivorian first division club, AFAD Djekanou. Molde noticed. In January 2020, the club invited Fofana for a two-month trial in Norway. He accepted and impressed – enough that, by the trial’s end, Molde had resolved to acquire him.
So shortly thereafter, Molde sent a representative to Abidjan to meet with City’s president. The meeting resulted in a clear demand from City: If Molde wanted Fofana, they would have to make a transfer offer. Reportedly, Molde’s representative agreed to get one from the club.
Apparently, Fofana had also impressed other European clubs because, by the summer of 2020, several began making their own transfer offers to City. Ultimately, the club settled on one from French club Angers: a €565,000 upfront fee, plus a €100,000 bonus for every 10 matches Fofana played with Angers (up to 50), and a 20% sell-on fee.[2] But while the clubs reached a transfer agreement in September 2020, Fofana did not agree to personal terms with Angers. So the deal evaporated.
The legal fight over Fofana’s contract
Molde never made a transfer offer to City. But about a month after the Angers agreement fell through, Fofana’s mother filed a claim with the Ivorian federation’s Commission on Player Status (the “ICPS”), seeking to invalidate her son’s contract. In the claim, she argued that neither she nor Fofana made the signatures attributed to them on the contract.
The ICPS agreed and, thus, wiped away Fofana’s contract. This ruling cleared Molde to acquire Fofana without a transfer fee. And acquire him they did – as on December 23, the day after his 18th birthday, Fofana signed a four-year contract with the club. Molde had not notified City beforehand, much less discussed a transfer arrangement.
Five days after the ICPS ruling, the Abidjan Plateau Court of the First Instance ordered its own examination of the signatures. City also appealed the ICPS ruling to FIFA’s Dispute Resolution Chamber and the Ivorian Federation’s appeals tribunal.
It appears that, in early September 2022, the DRC ruled against City. While the decision is not public, City wrote a subsequent letter to FIFA which referred to the DRC “rejecting [their] request.” The letter also hints that the DRC panel relied on the ICPS ruling to conclude no contract had been formed between Fofana and City.
But after that, the momentum shifted. On September 28, 2022, based on its previously-order examination, the Abidjan Plateau Court ruled the signatures genuine – in essence, reviving City’s breach of contract claim. This swayed the Federation’s appeals tribunal to reverse the ICPS’s original ruling.
Armed with these opinions, Abidjan City has gone back to FIFA. In a December 29, 2022 letter, the club informed FIFA of the two recent opinions undermining the ICPS ruling – and with it, the DRC’s September 2022 decision.
Originally, City asked the DRC to reverse its decision and block Fofana’s move to Chelsea. The transfer still happened. So that remedy is gone. Still, the recent decisions may have given City another chance to succeed in their quest for breach of contract damages.
LEGAL ISSUES
Which tribunal has jurisdiction to hear Abidjan City’s revised claim?
Before Abidjan City can succeed on their claim, a tribunal must have jurisdiction to hear it. To this question, there is no set of applicable rules or jurisprudence that offers a clear answer.
Some reports have implied City already presented the recent decisions to the CAS and asked that body to rule Fofana signed the contract. The club could do this through an appeal. FIFA rules allow parties to appeal FIFA decisions to the CAS, if they file the appeal no more than 21 days after “receipt of the decision in question.”[3]
FIFA Statutes, which establish the right to appeal, do not define “receipt” and “decision.” That said, the DRC’s procedural rules offer more detail on both terms. Based on these rules, a party has “notification” of a decision when it is “communicated” to the part.[4] While “receipt” and “notification” are not necessarily the same, FIFA may use latter to help it define the former. The procedural rules also deem notification to have occurred when the party learns the “operative part of the decision.”[5] This does not mean the grounds for the decision, which the party must request. So again, while these provisions are not a precise fit with the appeal rule in FIFA’s statutes, they could help FIFA interpret that rule.
Depending on what these terms mean, the 21-day clock could start at different times. Consider that verbal notice of the result only, in-hand delivery of a written opinion, and several other points on that spectrum could all be fairly characterized as “receipt of the decision.” At first blush, this may seem like a minor distinction – a few days in either direction. But arguments over filing deadlines do arise in litigation, and often, their outcomes depend on the precise moments the limitations period begins and ends. So these terms should not be ignored.
In City’s case, the terms’ meanings could alter the deadline by a day. Based on the club’s letter to FIFA, City learned the result of the DRC’s decision on September 6 and the grounds on September 7. If the first date qualified as “receipt of the decision,” City would have had until September 27 to appeal. If “receipt” occurred on the second date, the deadline would move forward a day, to September 28. There is no other public information on whether City received notice at an earlier date or filed an appeal within the 21-day window. So it is unclear whether appeal to the CAS is viable.
It also might be possible for City to reopen the case with the DRC. But this gets tricky. Unlike FIFA’s Code of Ethics or Disciplinary Code, the DRC’s procedural rules do not include a provision establishing a right to reopen cases or a standard parties must meet to accomplish it.[6] In some instances, the CAS has analyzed whether to reopen FIFA Disciplinary Committee decisions (though not DRC decisions).[7] When these awards were issued, the Disciplinary Code did not have a rule allowing claims to be reopened. In 2022, FIFA added such a rule.[8]
That said, the DRC is a distinct body, with its own procedural rules. And those rules do not address this issue – even after FIFA added the new rule to the Disciplinary Code. So unlike with other judicial bodies, FIFA has not expressed a desire to reopen DRC cases.
If Abidjan City wins on their breach of contract claim, how much could they recoup in damages?
In breach of contract cases, Article 17 of the RSTP governs damages. According to this provision, damages are calculated under different standards, depending on the type of breach alleged. For example, Article 17.1 specifies that, when a club breaches their contract with a player, the player’s damages equal the value of the time remaining on that contract, less compensation from any new contract he signs during that period.[9]
But the issue in City’s case is the reverse: the compensation due a club for a player’s breach. For these, Article 17.1 does not prescribe a definite formula. Rather, it offers a two-stage analysis that relies on a softer set of qualities. First, if a contract has a clause providing for damages, the panel relies on that for the damage number. Second, if the contract does not have such a clause, the panel turns to a list of factors set forth in Article 17.1.
Liquidated damages
First, the panel must determine whether the breached contract provides for damages.[10] In other words, does the contract include a valid liquidated damages clause? If so, that determines the damage number, and the inquiry ends.
This point does come with a caveat: Panels may strike a liquidated damages clause if it is unfair or disproportionate. For example, in an untitled April 2019 case, a DRC panel refused to consider liquidated damages provisions because the monetary penalty they imposed on the player for breaching was more than five times greater than the penalty on the club for doing the same.[11]
Factor test
Not all contracts provide for liquidated damages. In these instances, the panel moves to the second stage of the inquiry: a loose factor test set forth in the RSTP and developed through DRC jurisprudence. Specifically, Article 17(1) instructs panels to give “due consideration for the law of the country concerned, the specificity of sport, and any other objective criteria.”[12] The objective criteria include the “remuneration and other benefits” due the player under his existing and new contracts, the time remaining on this existing contract, the fees the player’s existing club paid to acquire him – “amortised over the term of the contract” – and whether the breached occurred during a “protected period.”[13]
On paper, the test seems to grant panels a relatively free hand to set a damage figure. But in practice, the DRC sticks to a consistent formula it has built case-by-case. First, panels begin with an average – that is, they average (1) the compensation remaining on the original contract (i.e., the contract the player breached) and (2) the compensation due the player on his new contract, over the period remaining on his original one.[14] The compensation extends beyond the player’s salary. So if he gets a monthly housing stipend, the stipends for the remaining months on the breached contract and the stipends on the new contract factor into the calculation.[15]
With this average as a foundation, panels then determine what other amounts to include. This may be the club’s acquisition costs, prorated over the contract term on the contract. Such was the case in 2015, when Lazio brought breach of contract claims against Argentine attacker Mauro Zarate and his new club Velez (also Argentine). In calculating damages, the panel had to account for the €20.2M release clause Lazio paid to get Zarate from Qatar’s Al-Sadd. As Zarate had a year remaining on his five-year contract with Lazio, the panel added €4.04M – 1/5 of the release clause – to Lazio’s damages.[16] Then it added another €162k – a fifth of approximately €810k in solidarity Lazio paid to Zarate’s training clubs.[17] The panel placed these numbers atop the initial average (€1.0635M) to get €5.265M. This became Lazio’s damages.[18]
Other times, the DRC panel will increase damages to achieve what it views as a just result. Functionally, this might resemble the equitable considerations courts in the United States make in various situations. Still, the rationale behind the DRC’s decisions can be tough to pinpoint. In March 2021, a three-person DRC panel ruled that Algerian left back Naoucel Khacef breached his contract with NA Hussein Dey, a club in his country’s topflight. Khacef had abandoned his contract with NAHD and signed with Portugal’s Tondela on a free transfer. He did this while NAHD was negotiating his transfer – for a fee – with Tondela.[19] To calculate damages, the panel began by averaging the remaining compensation on Khacef’s contract with NAHD (€27,720) and the compensation on his Tondela contract (€177,000) for the same period.[20] This came to €102,360. But rather than regurgitating that number as NAHD’s damages, the panel concluded the amount did not “reflect fairly the circumstances surrounding the case at stake.” So it increased damages to €160,000.[21] The panel offered no basis for the higher amount.
Application to Fofana
It has not been reported whether Fofana’s contract with City included a liquidated damages clause. Assuming it did not – and assuming City established a breach – the damage calculation would fall to the DRC’s step-by-step process. Here, a panel might have good reason to apply the equitable considerations that pushed NAHD’s damages higher.
First, the initial average between the two contracts might be low. Based on the size of both clubs, it is unlikely that either contract provided significant wages. So the resulting average would seem a poor fit for a multi-national dispute over a highly-regarded prospect.
Second, City lost significant money when Fofana left for free. Using Angers’ offer as a benchmark, the club stood to make almost €3.5M off Fofana – a windfall for a club City’s size.[22] Compare this to the money City actually received for Fofana, all of which was limited to the secondary market. The best estimate would be about €145k in training compensation from Molde and another €185k in solidarity off the sale to Chelsea. So while the Angers transfer was never activated, it is likely Fofana would have earned City much more than a standard damage calculation would provide.
The eventual damage amount would consider all these factors and more. In the end, it would become the panel’s judgment call – with a wide range of possibilities.
Can Molde be held liable for aiding and abetting a breach?
According to Article 17(2), if Fofana were found liable for a breach, Molde would automatically become jointly and severally liable for any damages Fofana had to pay.[23] This applies regardless of whether Molde played a role in the breach.[24]
Further, according to Article 17(4), it would be presumed that Molde aided and abetted Fofana’s breach.[25] Molde would then bear the burden of demonstrating they did not aid and abet.[26] If they failed to do so, Article 17(4) requires the DRC to ban the club from registering new players for two consecutive transfer windows.[27]
Was Fofana’s contract with Abidjan City’s contract a professional contract?
Even if Fofana signed his contract with City, it would have to be a professional contract to enjoy the RSTP’s protection.[28] This does not depend on how the parties labeled the contract.[29] Nor does it depend on how the club is labeled – amateur, professional, or otherwise. The issue is a narrow one: whether the contract bestowed greater compensation on the player than his cost to the club.[30] Again, since we do not have much public information on Fofana’s contract with City, it is unclear how the DRC or CAS would resolve this issue.
[1] Because Fofana was under 18, his mother also had to sign the contract.
[2] Abidjan City also considered two other offers – one from Belgian club Waasland-Beveren and another from Racing Strasbourg in France’s Ligue 1: The sale – Josimarfootball.com.
[3] FIFA Stat. Art. 57(1)
[4] Procedural Rules Governing the Football Tribunal, Art. 15(1)
[5] Procedural Rules Governing the Football Tribunal, Art. 15(4)
[6] FIFA Code of Ethics, Art. 62(4); FIFA Disc. Code, Art. 35(6)
[7] See e.g., Nasuti v. AEK Athens, CAS 2019/A/6912, at ¶47
[8] Compare Article 32 in the 2019 FIFA Disciplinary Code and Art. 35 in the 2022 FIFA Disciplinary Code.
[9] This standard only applies to “compensation due a player.” FIFA RSTP, Art. 17(1). So it would be limited to situations where a party other than the player – usually a club – breaches.
[10] FIFA RSTP, Art. 17(1)
[11] In re Player C (born 13 August 1990), Decision of the FIFA Dispute Resolution Chamber, 11 April 2019, at ¶18
[12] FIFA RSTP, Art. 17(1)
[13] FIFA RSTP, Art. 17(1); The RSTP defines “protected period” as “a period of three entire seasons or three years, whichever comes first, following the entry into force of a contract, where such contract is concluded prior to the 28th birthday of the professional, or two entire seasons or two years, whichever comes first, following the entry into force of a contract, where such contract is concluded after the 28th birthday of the professional.”
[14] See e.g., In re Zarate, Decision of the FIFA Dispute Resolution Chamber, 2 July 2015, at ¶23; In re Khacef, Decision of the FIFA Dispute Resolution Chamber, 25 March 2021, ¶¶79-81; In re Player C (born 13 August 1990), at ¶23; In re Player C (born 3 May 1986), Decision of the FIFA Dispute Resolution Chamber, 17 June 2016, at ¶34
[15] In re Player C (born 13 August 1990), at ¶22
[16] In re Zarate, at ¶24
[17] In re Zarate, at ¶25
[18] In re Zarate, at ¶27
[19] In re Khacef, at ¶¶8-13
[20] In re Khacef, at ¶¶79-81. Interestingly, the contract with Tondela expired at the same time the contract with NAHD would have expired.
[21] In re Khacef, at ¶82
[22] City’s transfer agreement with Angers consisted of a €565k upfront payment, a €100k bonus for every ten games Fofana played up to 50 and a 20% sell-on fee. Fofana appeared in over 50 games for Molde, and while Angers plays in a more prestigious league, the talent he exhibit suggest he could have hit 50 appearances there as well. So there was a solid chance City would have earned the full €500k bonus. Further, if Angers sold Fofana for the €12M Chelsea paid, City would have made another €2.4M. In total, this would have netted City almost €3.5M.
[23] FIFA RSTP, Art. 17(2)
[24] See e.g., In re Zarate, at ¶18
[25] FIFA RSTP, Art. 17(4)
[26] See In re Khacef, at ¶¶90-91
[27] See In re Khacef, at ¶92, citing FIFA RSTP, Art. 17(4). It should also be noted that Article 17(3) attaches sporting sanctions to the breaching player: a four-month suspension from official matches.
[28] FC Barcelona v. Manchester United, CAS 2004/A/691, at ¶2
[29] In re Silva Santos, at ¶16
[30] In re Silva Santos, at ¶¶15-16
Terry Brennan Law 