Dispute Resolution Chamber
Texto da decisão
REF 20-01692/ifa
Decision of the
Dispute Resolution Chamber
passed on 8 April 2021
regarding an employment-related dispute concerning the player Wilfried Guemiand
Bony
COMPOSITION:
Geoff Thompson (England), Chairman
Tomislav Kasalo (Croatia), member
Jérôme Perlemuter (France), member
CLAIMANT:
Wilfried Guemiand Bony, Côte d'Ivoire
Represented by Livida Sport Limited, Ms. Stefania Genesis & Ms. Liz Ellen
RESPONDENT:
Al Ittihad, Saudi Arabia
Represented by Bär & Karrer, Dr. Jan Kleiner & Ms. Vanessa Plavjanikova
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I.
FACTS OF THE CASE
1.
On 29 January 2020, the Ivorian player, Wilfried Guemiand Bony (hereinafter: Claimant or
player), and the Saudi club, Al Ittihad (hereinafter: Respondent or club), concluded an
employment contract valid as from 28 January 2020 until 30 June 2021.
2.
According to the employment contract, the player was entitled to a monthly salary of:
EUR 100,000 per month from 28 February 2020 to 30 June 2020;
EUR 145,834 per month from 1 July 2020 to 30 June 2021,
EUR 750,000 as advance payment due by no later than 15 July 2020.
3.
In August 2020, the player’s agent and counsel were in contact with the club in respect of
the non-payment of his June and July salaries as well as the advance payment in the amount
of EUR 750,000.
4.
Those discussions led to the conclusion of a termination agreement on 31 October 2020.
5.
According to the termination agreement, the club agreed to pay the player EUR 1,491,000
as follows (clause 2 of the termination agreement):
6.
EUR 750,000 within 48 hours of the termination being signed, i.e. 2 November
2020,
EUR 303,471 on 30 November 2020,
EUR 145,843 on 31 December 2020,
EUR 145,834 on 31 January 2021,
EUR 145,834 on 28 February 2021.
Clause 4, 5 and 6 of the termination agreement stipulate as follows:
“4. The Parties acknowledge that this Agreement, upon the fulfilment of its terms, is
considered a final and complete settlement of all financial or other legal claims between
the Parties arising out of the period during which the Player was employed by the Club,
and the Player is not entitled to require the Club or any other party or other person to pay
any other amounts other than those specified in this Agreement.
5. In the event that the Club fails to pay in full or on time any instalment of the Settlement
Sum, the Club will be immediately liable to pay to the Player the sum of 2,220,340 Euro
(two million two hundred and twenty thousand three hundred and forty euros) less
any Settlement Sum payment already made (the “Debt”).
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6. The Club hereby agrees that the Player shall be entitled to pursue the Debt through any
legal means necessary, whether through FIFA, CAS or any domestic court. All costs of
pursuing the Debt will be added to the total due from the Club.”
7.
On 9 November 2020, the player’s counsel wrote an email to the club to request an urgent
update as to the status of the payment of EUR 750,000 in accordance with the termination
agreement. Emphasis was put on the fact that failure to meet the respective payment
obligation would put the club in immediate breach of the termination agreement making
it liable to pay the player the full sum of EUR 2,220,340.
II.
PROCEEDINGS BEFORE FIFA
8.
On 19 November 2020, the Claimant filed a claim against the Respondent before FIFA in
connection with the alleged non-compliance by the Respondent of the terms of the
termination agreement. A brief summary of the position of the parties is detailed below.
a.
The claim of the Claimant
9.
According to the Claimant, in breach of Clause 2 of the termination agreement, the Club
failed to make payment of the first instalment of EUR 750,000 by 2 November 2020.
10.
As a result of the club’s failure to “pay in full or on time any instalment of the Settlement
Sum”, Clause 5 of the termination agreement was automatically triggered and
consequently, the club was immediately liable to pay the player the sum of EUR 2,220,340.
11.
The player emphasised that it had been very accommodating towards the club’s financial
difficulties, however there is no valid reason for the club’s delay in payment.
12.
The requests for relief of the Claimant, were the following:
Payment to the player of EUR 2,220,340 (pursuant to clause 5 of the
Termination Agreement);
Payment of the interest which has accrued on the specified sum at a rate
of 5% per annum, being EUR 5,474.70. Interest will continue to accrue at a daily
rate of EUR 304.15;
Payment of the legal costs and expenses incurred by the Player in bringing this
claim, which currently stand at EUR 7,000.
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b.
Position of the Respondent
13.
In its reply to the claim, the club explained that it was severely impacted by the Covid-19
pandemic and that the government in Saudi Arabia had imposed a series of restrictive
measures to fight the pandemic.
14.
The club underlined that during all this time, its management still took its contractual and
regulatory obligations towards clubs, players and towards FIFA very seriously. The club saved
money wherever it could, it tried to mobilize additional financial resources, all with
the aim to respect its financial commitments.
15.
As to the payment due to the player, the club alleged that it attempted to make the
payment of EUR 750,000 to the player on 4 November 2020. In this regard, the club
referred to an extract from its bank account showing a bank order dated 4 November 2020
in the amount of EUR 750,000.
16.
However, on the next day, on 5 November 2020, newly enacted regulations came into
effect, which prohibited the use of a club's budget to settle financial commitments entered
into by means of termination agreements. In support of this allegation, the club provided a
circular dated 5 November 2020 from the Ministry of Sports of Saudi Arabia, which states
inter alia the following:
“No official of any sports club may, in case he terminates the contracts of players, coaches
or those assimilated to them, burden the club's budget with the financial implications
arising from such act, or deduct these amounts from the share of the club in the Strategy
of Supporting Sports Clubs program, unless the termination of the contract results in
reducing the financial obligation arising from the contract in case the parties continued to
implement it until its expiry. Anyone who is in breach thereof will be responsible for the
consequences of such violation as referred to in the First paragraph”.
17.
In view of this restriction, the respective payment order made by the club on 4 November
2020 was rejected.
18.
In summary, the club does not dispute that it did not make the payment of EUR 750,000
but it argued that it was faced with a situation of force majeure in light of the restrictions
suddenly imposed by the Ministry of Sports.
19.
In this regard, the club referred to art. 119 of the Swiss Code of Obligations, which defines
the concept of force majeure. The club deems that the conditions of a force majeure are
met in the case at hand. Indeed, the club was legally prevented from executing the
termination agreement based on the above-cited new regulations; the enactment of the
new regulations was completely surprising, as they entered into effect on the very next day
after the first payment (on 5 November 2020); all of these circumstances were
completely unforeseeable.
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20.
Equally, the enactment of the new regulations were not known to the club at the
time of signing of the termination agreement and it was therefore impossible to foresee
that the club would be under such a new "regime" of regulations on the date
specified for the payment of the first instalment.
21.
Consequently, the club is of the opinion that its obligations under the termination
agreement should be considered as extinguished. Notwithstanding, the club wishes to
honour its financial obligations towards the player; however, these should be renegotiated
as the club simply cannot make the payment as initially provided for in the termination
agreement.
22.
Furthermore, the club deems that clause 1.5 of the termination agreement was not
triggered in light of the force majeure.
23.
Lastly, the club emphasised that the last instalment under the termination agreement,
which was originally due on 28 February 2021, was not yet due upon the filing of the
answer to the claim. Consequently, it shall not be taken into consideration when assessing
the claim.
24.
In continuation, the club held that, in the event the DRC would consider liable to make
payments to the player under the termination agreement, the club argued that these should
be significantly reduced in light of the principle of clausula rebus sic stantibus, which gives
the judge the possibility to a contract to new conditions and circumstances and is
considered a general principle of law by the Swiss Federal Tribunal.
25.
In this context, the club highlighted that the Saudi government had imposed various
measures, which significantly limited and disrupted the functioning of a football club.
Indeed, the Saudi league was suspended and the club was no longer able to generate any
income. Furthermore, the government stopped funding football clubs.
26.
Moreover, according to the club, there is a clear and serious disruption in the contractual
balance between the two parties under the termination agreement. Indeed, in case the
payments would actually have been made by the club in accordance with the termination
agreement, this would have essentially put the entire financial existence of the club in
question. In fact, the ratio behind the regulations implemented by the Ministry of Sports
was to prevent exactly this scenario.
27.
Finally, the club reiterated that the sudden restrictions could not be foreseen.
28.
In conclusion, the DRC should consider a “judicial amendment of the contract”. The club
deems, in this regard, that a reduction by 30% on all due amounts should be made. As
justification for the 30% reduction, the club refers to the FIFA International Transfer Market
Snapshot, according to which, “In the recent window, the fees accompanying the
international transfers of professional players amounted to a total of USD 3.92 billion.
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29.
III.
This represents a steep drop of more than 30% in comparison to 2019, when clubs spent
a total of USD 5.8 billion on 1,623 transfers”.
Finally, the club rejected the player’s request for contribution to his legal fees, referring to
Art. 18 para. 4 of the Procedural Rules.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
30.
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 19 November 2020 and
submitted for decision on 8 April 2021. Taking into account the wording of art. 21 of the
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.
31.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players (edition February 2021), the Dispute
Resolution Chamber 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 Saudi club.
32.
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 Player (edition February 2021), and
considering that the present claim was lodged on 19 November 2020, the October 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
33.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
34.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
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c.
35.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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.
i. Main legal discussion and considerations
36.
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 whether the Respondent was in
breach of the termination agreement by not proceeding to the payment of the first
instalment on the agreed due date.
37.
According to the Claimant, the fact that the Respondent did not pay the amount of EUR
750,000 within 48 hours of signature of the termination agreement triggered the
application of clause 5 of the termination agreement and that, therefore, he is entitled to
receive the amount of EUR 2,220,340.
38.
The Respondent, for its part, explained that it was not in a position to comply with the
timely payment of EUR 750,000 due to force majeure. In particular, the Respondent refers
to a circular dated 5 November 2020 from the Ministry of Sports of Saudi Arabia, which
allegedly prevented it from performing the relevant payment. Furthermore, the Respondent
invoked the theory of clausula rebus sic stantibus as a reason to possibly reduce the amounts
due to the Claimant, taking into consideration the unexpected and unpredictable events
which transpired following the Covid-19 outbreak and subsequent governmental decisions
in relation to said pandemic.
39.
Having carefully considered the Respondent’s arguments as evidence produced in the
matter at hand, the Chamber first established that the Respondent had not disputed the
fact that it had not paid the amount of EUR 750,000 in accordance with the settlement
agreement.
40.
With respect to the alleged situation of force majeure, the DRC pointed out that, in
accordance with the termination agreement, the payment of EUR 750,000 was to be made
within 48 hours of its signature, i.e. no later than 2 November 2020. According to the
payment order which was produced as evidence of an attempt to make the said payment,
the club, attempted to make the payment of the relevant amount only on 4 November
2020, this is, two after the deadline for the payment had elapsed. The restrictions
apparently imposed by the Ministry of Sports, though, only came into force on 5 November
2020.
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41.
With the above-mentioned in mind, the Chamber held the view that it could not uphold
the Respondent’s arguments with respect to its incapacity to perform the relevant payment
on 4 November 2020, since, at that time, such payment should already have been made.
Indeed, should the Respondent have made the payment within the agreed deadline of 48
hours, the governmental restrictions apparently imposed by the Ministry of Sports would
not have applied, since these came into force only on 5 November 2020.
42.
The DRC, therefore, unanimously concluded that, in light of the principle of ex turpi causa
non oritur actio, the Respondent, who was already in breach of the termination agreement
when it attempted to make the payment of EUR 750,000 on 4 November 2020, could not
validly invoke a force majeure situation which arose only after its payment obligation should
have been performed.
43.
In view of the above, the DRC established that the Respondent had breached the
termination agreement by not proceeding to the payment of EUR 750,000 until 2 November
2020. As a consequence of such breach, clause 5 was triggered, entitling the Claimant, in
principle, to receive the total sum of EUR 2,220,340.
44.
At this stage, the Chamber examined the question of a possible reduction of the amount
of EUR 2,220,340 in light of the Respondent’s arguments with respect to the theory of
clausula rebus sic stantibus.
45.
In this regard, the DRC reiterated that the Respondent could not validly invoke the
unexpected or unpredictable nature of the governmental restrictions since it had breached
the termination agreement already before such restrictions came into force.
46.
Furthermore, the Chamber wished to emphasise that the termination agreement was
concluded on 31 October 2020, this is, at a time when the Saudi league had already
resumed and, essentially, the situation of hardship linked to the Covid-19 pandemic were
widely known. In the Chamber’s view, the fact that the Covid-19 pandemic significantly
had an impact on the club’s financial abilities is a factor which the club should have taken
into consideration when concluding the termination agreement.
47.
In conclusion, the DRC unanimously reached the conclusion that the Respondent cannot
reasonably argue that the termination agreement could not be executed due to a sudden
change of conditions and circumstances.
48.
In light of the aforementioned considerations, the Chamber held that, in accordance with
the principle of pacta sunt servanda and in application of clause 5 of the termination
agreement, the Respondent is liable to pay the Claimant the total amount of EUR
2,220,340.
49.
Furthermore, considering the Claimant’s respective claim as well as the constant practice of
the Chamber, 5% interest per annum shall apply on the aforementioned amount as from
19 November 2020 until the date of effective payment.
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50.
Lastly, the DRC analysed the Claimant for contribution towards his legal fees. In this regard,
Chamber held that, although the termination agreement does refer to the obligation for
the club to cover the player’s legal fees, the agreement does not specify a quantum.
Therefore, such request cannot be granted.
51.
Furthermore and for the sake of completeness, the Chamber referred to art. 18 par. 4 of
the Procedural Rules, according to which No procedural compensation shall be awarded in
proceedings of the DRC.
ii. Compliance with monetary decisions
52.
Finally, taking into account the consideration under number 32. above, the Chamber
referred to par. 1 and 2 of art. 24bis 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.
53.
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 and for the maximum
duration of three entire and consecutive registration periods.
54.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from the
moment in which the Claimant, communicates the relevant bank details to the Respondent,
provided that the decision is final and binding, a ban from registering any new players,
either nationally or internationally, for the maximum duration of three entire and
consecutive registration periods shall become effective on the Respondent in accordance
with art. 24bis par. 2 and 4 of the Regulations.
55.
The DRC recalled that the above-mentioned bans will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3
of the Regulations.
56.
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, Mr Wilfried Guemiand Bony, is partially accepted.
2.
The Respondent, Al Ittihad, has to pay to the Claimant, the following amount:
- EUR 2,220,340 plus 5% interest p.a. as from 19 November 2020 until the date of effective
payment.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
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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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