Labour Disputes
Texto da decisão
REF FPSD-3366
Decision of the
Dispute Resolution Chamber
passed on 27 October 2021
regarding an employment-related dispute concerning the player Diouf
Bireme
BY:
NEWMAN, Jon (USA)
CLAIMANT:
Diouf Bireme, Côte d'Ivoire
Represented by Menno Teunissen & Thomas Spee
RESPONDENT:
Muangkan United, Thailand
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REF FPSD-3366
I.
Facts of the case
1.
On 19 August 2020, the Ivorian player Diouf Bireme (hereinafter: the Claimant or the Player)
and the Thai club Muangkan United (hereinafter: the Respondent or the Club) signed a
document called “Muangkan United Football Club Agreement” (hereinafter: the Precontract).
2.
Clause 2 of the Pre-contract reads as follows (quoted verbatim):
“In a period of 2 years, Muangkan United Football Club is willing to pay compensation and
sa lary of 6,000.000 baht, divided into the following:
2.1 On the signing of this memorandum of agreement, the Muangkan United Football Club
will pay Mr. Diouf Bireme in the amount of 250,000 baht.
2.2 From September 2020 to January 2021, the Muangkan United Football Club will pay Mr.
Diouf Bireme a monthly payment of 350,000 bah for a total of 5 months, totaling 1,750,000
baht.
2.3 From February to November 2021, the Muangkan United Football Club will pay Mr. Diouf
Bireme of 220,000 baht per month for a total of 10 months, totaling 2,200,000 baht.
2.4 From December 2021 to August 2022, the MuangKan United Football Club will pay Mr.
Diouf Bireme 200,000 baht per month for a total of 10 months, totaling 1,800,000 baht.”
3.
On 1 September 2020, the parties concluded an employment contract valid from 1 September
2020 until 31 August 2022 (hereinafter: the Contract).
4.
Clause 2 of the Contract reads as follows:
“The salary payment for the player shall be as follow:
2.1 The basic monthly salary is as follow 208,333 baht which will be paid to the player under
the condition in which the player strictly follows the practice schedule and regulations. The
date of payment is no later than on the 5th of next month”
5.
On 10 May 2021, the Claimant sent a notice to the Respondent stating that he did not wish
to be loaned, asked to receive the training program, and requested proof of registration with
the Respondent.
6.
On 7 July 2021, the Claimant sent a second default notice to the Respondent requesting the
total amount of Thai Baht (“THB”) 531,667 and giving the Respondent 15 days to comply
with its contractual obligations, however to no avail.
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7.
On 23 July 2021, the Claimant sent a termination notice to the Respondent.
8.
On 10 August 2021, the Respondent sent a notice to the Claimant, reprimanding him for
missing training on the previous day and threatening disciplinary action if further breaches
were committed.
9.
On the same date, the Respondent paid an amount of THB 483,832.70 to the Claimant.
II. Proceedings before FIFA
10. On 19 August 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
11. According to the Claimant, when the parties signed the Contract on 1 September 2020, the
Claimant pointed out to the Respondent that the amounts indicated did not correspond to
the amounts agreed in the Pre-contract.
12. The Claimant further states that the Respondent assured him that he would be paid on the
basis of the amounts indicated in the Pre-contract but that the amount of THB 208,333
should be indicated in the Contract for tax reasons.
13. In this regard, the Claimant states that from September 2020 to December 2020, he received
the salary of THB 350,000 per month.
14. According to the Claimant, in February and March 2021, he received THB 220,000 as
indicated in his pre-contract.
15. The Claimant further states that the Respondent tried to force him to go out on loan or to
terminate the Contract, which he opposed. In addition, he submits that in order to “apply
pressure on him”, the Respondent stopped paying all or part of his salaries and stopped
providing him with the training schedule, which resulted in the termination of the Contract
by the Claimant on 23 July 2021, arguing just cause.
16. The Claimant files that as of date of termination the Respondent owed him the amount of
THB 531,667 as outstanding salaries.
17. The Claimant admits that on 10 August 2021, the Respondent paid an amount of THB
483,832.70. In addition to the payment, the Claimant states that he was informed by the
Respondent by phone that “there were no longer any backlogs and that he should resume
training”.
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18. The Claimant submits that the late payment by the Respondent does not affect the validity
of the termination. Furthermore, the Claimant states that after the payment of THB
483,832.70 in August 2021, the amount of THB 47,834.3 remained outstanding in his
favour.
19. In addition, the Claimant submits he shall be entitled to compensation for breach of contract
in the amount of THB 2,700,000, calculated as follows:
Remaining salary July 2021- end of contract:
o July 2021 to November 2021: 5 x 220,000 = THB 1,100,000
o December 2021 to August 2022: 8 x 200,000 = THB 1,600,000
20. The Claimant deems that due to the egregious circumstances, he shall be entitled to
additional compensation in the amount of 6 monthly salaries.
21. The Claimant’s requests for relief are:
“In the view of the above and reasons wherefore, the Claimant requests the FIFA Dispute
Resolution Chamber to pronounce on the following and to make such order as it considers
necessary and appropriate as follows, i.e. to:
-
To Order Muangkan United FC to pay Mr. Diouf Bireme the sum of 2,747,834.3 Thai Baht;
-
Find that Muangkan FC has breached the employment contract and Mr. Bireme and that
the Player left the Club with Just cause;
-
In accordance with 17 para 4 of the RSTP apply a sporting sanction against Muangkan;
-
To award interests calculated at 5% p.a. on the amount requested for payment arrears
from the day the payment was due, until the day these sums are effectively paid;
-
To award interests calculated at 5% p.a. on the amount requested for compensation from
the day the Player terminated his contract (23 July, 2021), until the day the sums are
effectively paid;
-
Order the Claimant to bear the legal fees and costs incurred by the Respondent in relation
to this matter.”
b. Position of the Respondent
22. Despite being invited to do so, the Respondent failed to provide its position to FIFA.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
23. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as the Single Judge) analysed whether he was competent to deal with the case at hand. In
this respect, he took note that the present matter was presented to FIFA on 19 August 2021
and submitted for decision on 27 October 2021. Taking into account the wording of art. 21
of the October 2021 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
24. Subsequently, the Single Judge referred to art. 3 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 (edition August 2021), he is competent to deal with the
matter at stake, which concerns an employment-related dispute with an international
dimension between an Ivorian player and a Thai club.
25. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Player (edition August 2021), and
considering that the present claim was lodged on 19 August 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
26. The Single Juge 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, he 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
27. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
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i. Main legal discussion and considerations
28. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that in view of the lack of reply from the Respondent, the
Claimant’s claim for outstanding remuneration and compensation for breach of contract
remained uncontested. The Single Judge emphasized that the Respondent, failed to present
its response to the claim of the Claimant, in spite of having been invited to do so. In this way,
the Single Judge considered that the Respondent renounced its right to defence and thus
accepted the allegations of the Claimant.
29. Furthermore, as a consequence of the aforementioned consideration, the Single Judge
emphasised that in accordance with art. 21 par. 1 and 22 of the Procedural Rules, he shall
take a decision upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
30. In this context, the Single Judge acknowledged that his task was to determine whether the
Claimant was indeed entitled the amounts he claimed.
31. The above having been established, the Single Judge deemed it first had to confirm which
was the true salary of the Claimant considering the diverting amounts of the Contract and
the Pre-Contract.
32. In this regard, considering the evidence submitted by the Claimant, the Single Judge was
convinced that the true salary of the Claimant was the one agreed in the Pre-Contract as this
was the amount he effectively received on a monthly basis.
33. Once the above had been established, the Single Judge moved to the matter of termination
of the Contract.
34. Bearing in mind the aforementioned considerations, the Single Judge was convinced that at
the time of termination, the Respondent owed to the Claimant the amount of THB 531,667,
an amount greater than 2 monthly salaries. At the same time, the Single Judge was mindful
that the Claimant put the Respondent in default, granting it with a deadline of at least 15
days to cure the breach, to no avail.
35. Based on the foregoing and having in mind the contents of art. 14bis of the Regulations, the
Single Judge decided that the Claimant had just cause to terminate the Contract on 23 July
2021.
ii. Consequences
36. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
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37. The Single Judge observed that the outstanding remuneration at the time of termination
amounted THB 531,667.
38. The Single Judge further noted that, on 10 August 2021, after the Contract had already been
terminated, the Respondent paid the amount of THB 483,832.70 to the Claimant.
39. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination and had not
been paid thereafter, i.e. THB 47,834.30.
40. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Football Tribunal in this regard, the Single Judge decided to award the Claimant interest
at the rate of 5% p.a. on the outstanding amounts as from 23 July 2021 until the date of
effective payment.
41. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the Single
Judge firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the
amount of compensation shall be calculated, in particular and unless otherwise provided for
in the contract at the basis of the dispute, with due consideration for the law of the country
concerned, the specificity of sport and further objective criteria, including in particular, the
remuneration and other benefits due to the player under the existing contract and/or the new
contract, the time remaining on the existing contract up to a maximum of five years, and
depending on whether the contractual breach falls within the protected period.
42. In application of the relevant provision, the Single Judge held that he first of all had to clarify
as to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Single Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
43. As a consequence, the Single Judge determined that the amount of compensation payable
by the club to the player had to be assessed in application of the other parameters set out in
art. 17 par. 1 of the Regulations. The Single Judge recalled that said provision provides for a
non-exhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
44. Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded
with the calculation of the monies payable to the player under the terms of the contract from
the date of its unilateral termination until its end date. Consequently, the Single Judge
concluded that the amount of THB 2,700,000 (i.e. the residual value of the contract) serves
as the basis for the determination of the amount of compensation for breach of contract.
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45. In continuation, the Single Judge verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
46. In this regard, the Single Judge observed that, according to the evidence available, the
Claimant had not found new employment.
47. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Single Judge decided that the club must pay the amount of THB
2,700,000 to the player, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
48. Lastly, taking into consideration the player’s request as well as the constant practice of the
Football Tribunal in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 19 August 2021 until the date of effective payment.
iii. Compliance with monetary decisions
49. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24bis
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.
50. In this regard, the Single Judge 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.
51. Therefore, bearing in mind the above, the Single Judge 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. 24bis par. 2, 4, and 7 of the Regulations.
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52. 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.
53. The Single Judge 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. 24bis par.
8 of the Regulations.
d. Costs
54. The Single Judge 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 Single Judge decided that no procedural costs were
to be imposed on the parties.
55. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
56. Lastly, the Single Judge concluded his 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, Diouf Bireme, is partially accepted.
2. The Respondent, Muangkan United, has to pay to the Claimant, the following amounts:
- Thai Baht (“THB”) 47,834.30 as outstanding remuneration plus 5% interest p.a. as from
23 July 2021 until the date of effective payment.
- THB 2,700,000 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 19 August 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. 24bis of the Regulations on the Status and Transfer of Players (February 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. 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.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter 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
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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