Labour Disputes
Texto da decisão
REF FPSD-4092
Decision of the
Dispute Resolution Chamber
passed on 24 February 2022
regarding an employment-related dispute concerning the player Thievy Bipfouma
BY:
Clifford J. Hendel (USA/France), Deputy Chairperson
Gonzalo de Medinilla (Spain), Member
Jorge Gutierrez (Costa Rica), Member
CLAIMANT:
Thievy Bipfouma, France
Represented by Le cabinet de Me Batinde
RESPONDENT:
Yeni Malatyaspor, Turkey
Represented by Burak Çakir
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REF FPSD-4092
I.
Facts of the case
1.
On 25 January 2019, the French player Thievy Bifouma (hereinafter the Claimant or the player)
and the Turkish club Yeni Malatyaspor (hereinafter the Respondent or the club) concluded an
employment agreement (hereinafter the Employment Agreement), valid as of 25 January 2019
until 31 May 2021.
2.
Therein, in Clause 3 of the Employment Agreement “Special Provisions”, the Parties agreed upon
the following:
“j) In the case of further transfer of player to any third club, Player will be entitled % 10 from
total amount of transfer fee which will be paid to Yeni Malatyaspor Club will be done related
payment to player after all instalment done by third club.”
3.
On 25 June 2020, the Claimant and the Respondent (jointly referred to as the Parties) decided to
mutually terminate the Employment Agreement as the player consequently transferred to the
Chinese club, Shenzen FC.
4.
On the same date, the Parties signed a mutual termination agreement (hereinafter the
Termination Agreement), where, in Clause 2, they stipulated the following:
“a. The Player has total an amount 199,998.00 EURO (…) outstanding remuneration on the date
of this Mutual Termination.
b. The Parties are mutually agreed on term, club will pay 150,00.00 EURO (…), to player from
above mentioned amount to player. This amount will be paid within 10 days after club received
all transfer amount.
c. The Parties has a clause on current contract “Special Provision and Remunerations Article 1;
If the club sell the player third”. Due to the relevant clause the club will pay the player an amount
of 150,000.00 EURO (…)
e. The Player hereby releases the Club from its all obligations derived from all the contracts
including but not limited to the employment contract signed on 25 January 2019 and its annexes
in full and irrevocably. In sake of clarity, Subject to the fulfilment of the conditions provided for
in article 2.b and 2.c, (total 300,000.00 EURO (…), the Player hereby declares and accepts that
he will not have any claims from the Club; as compensation, remuneration or in any other
name.” (emphasis added)
5.
According to the information in the Transfer Matching System (TMS), the Claimant was registered
with the Chinese club, Shenzen FC, on 20 July 2020.
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6.
On 17 August 2021, the Claimant put the Respondent in default for the payment of the
outstanding remuneration in the total amount of EUR 300,000, providing it a 10 days’ deadline to
remedy its default, however, to no avail.
7.
Once again, on 2 September 2021, the Claimant put the Respondent in default for the payment
of the outstanding remuneration in the total amount of EUR 300,000, providing it a 10 days’
deadline to remedy its default, however, to no avail.
II. Proceedings before FIFA
8.
On 24 October 2021, 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
9.
In its claim, the Claimant requested the outstanding amount of EUR 300,000, plus 5% interest p.a.
as of 25 July 2021 until the date of effective payment, corresponding to the stipulated amounts in
the Termination Agreement.
10. Furthermore, the Claimant requested that legal costs in the amount of EUR 10,000 shall be paid
by the Respondent.
11. The Claimant argued that whereas the Chinese club, Shenzen FC, made the payments to the
Respondent, the latter failed to make any payments to the Claimant.
b. Position of the Respondent
12. The Respondent rejected the claim of the Claimant, arguing as follows:.
“We hereby would like to draw attention to clause 2.b on mutual termination;
The Parties are mutually agreed on term, club will pay 150.000,00 Euro
(OneHundredFiftyThousand), to player from above mentioned amount to player. This amount
will be paid within 10 day after club received all transfer fee amount. On the light of above
mentioned clause, claimant should prove the payment of transfer fee fully done by Shenzhen to
Malatyaspor. The transfer fee did not paid by Shenzhen in full amount.”
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. 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 24 October 2021 and submitted for decision on .
Taking into account the wording of art. 34 of the October 2021 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.
14. 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 (August 2021 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 French player and a Turkish club.
15. 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 (August 2021 edition), and considering that the
present claim was lodged on 24 October 2021, the August 2021 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
16. 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
17. 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 abovementioned 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.
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i. Main legal discussion and considerations
18. 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 the payment of certain financial obligations
by the Respondent as per the contract, namely the amount of EUR 300,000.
19. In this context, the Chamber acknowledged that its task was to determine, based on the evidence
presented by the Parties, whether the claimed amounts had in fact remained unpaid by the
Respondent and, if so, whether the latter had a valid justification for not having complied with its
financial obligations.
20. The Chamber first noted that in the case at hand the Respondent bore the burden of proving that
it indeed complied with the financial terms of the contract concluded between the parties.
Nonetheless, the Chamber acknowledged that no evidence was provided by the Respondent
regarding the payment of the amounts claimed as outstanding by the Claimant.
21. The DRC then recalled the argumentation of the Respondent regarding the amount of
EUR 150,000 stipulated in Article 2.b of the Termination Agreement, namely, that the Respondent
believed the “claimant should prove the payment of transfer fee fully done by Shenzhen to
Malatyaspor. The transfer fee did not paid by Shenzhen in full amount.”
22. In this respect, the Chamber decided to reject the said argument. What is more, the DRC
considered such clause invalid as the payment: (i) concerns the payment of outstanding salaries
of the player; (ii) such condition is dependent on something out of player’s scope of actions.
23. Furthermore, the Chamber pointed out that the Respondent did not contest that the amount of
EUR 150,000 stipulated in Article 2.c of the Termination Agreement is outstanding.
24. In view of the above, the Chamber concluded that no reasonable justification was presented by
the Respondent for not having complied with the terms of the contract.
ii. Consequences
25. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda, which
in essence means that agreements must be respected by the parties in good faith, the
Respondent is held liable to pay the Claimant the outstanding amounts deriving from the contract
concluded between the Parties, namely the amount of EUR 300,000.
26. Lastly, taking into consideration the constant practice of the Chamber in this regard and the fact
that the Termination Agreement is not clearly stipulated the respective due dates, the DRC
decided to award the player interest on said outstanding amount at the rate of 5% p.a. as from
the date of claim, i.e. 24 October 2021 until the day of the effective payment.
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iii. Compliance with monetary decisions
27. 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.
28. 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.
29. 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.
30. 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.
31. 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.
d. Costs
32. 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.
33. 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.
34. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any
of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Thievy Bipfouma, is partially accepted.
2.
The Respondent, Yeni Malatyaspor, has to pay to the Claimant, the amount of EUR 300,000 as
outstanding remuneration plus 5% interest p.a. as from 24 October 2021 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 (August 2021 edition),
if full payment (including all applicable interest) is not made within 45 days of notification of this
decision, the following consequences shall apply:
1.
2.
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.
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
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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).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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