Labour Disputes
Texto da decisão
REF FPSD-3840
Decision of the
Dispute Resolution Chamber
passed on 24 March 2022
regarding an employment-related dispute concerning the player Ibrahima Diaby
BY:
Frans DE WEGER (The Netherlands), Chairperson
Elvis CHETTY (Seychelles), member
Stijn BOEYKENS (Belgium), member
CLAIMANT:
Ibrahima Diaby, Côte d'Ivoire
RESPONDENT:
TP Mazembe, Congo DR
REF FPSD-3840
I Facts
1. On 1 February 2021, Ibrahima Diaby and TP Mazembe concluded an employment contract valid for
five seasons, i.e. from 1 February 2021 until 31 May 2026.
2. Accordingly, the player was entitled to the following:
5.1 Le Club paye au Joueur une remuneration composee d'un salaire fixe, de diverses primes et autres
avantages contractuels en nature. Tous les montants indiques au present article sont nets et seront
payes dans les 5 premiers jours du mois suivant la prestation. Le premier paiement interviendra en
consequence le 5 mars 2021.
5.2 Le Joueur a droit a un salaire mensuel fixe de Cinq Mille Dollars Americains (5000 USD)
Dans l'hypothese ou le Joueur prendrait part a moins de 80% des matches officiels en tant que
titulaire au cours d'une saison, son salaire mensuel fixe sera reduit de 50% a partir de la saison
suivante, et restera ace montant jusqu'au moment ou le joueur prendra part a au moins 80% des
matchs officiels comme_titulaire lors d'une saison suivante - auquel cas son salaire reviendra a 2500
USD.
Free translation into English:
5.1 The Club shall pay the Player a remuneration consisting of a fixed salary, various bonuses and
other contractual benefits in kind. All amounts specified in this Article are net and shall be paid within
the first 5 days of the month following the performance. The first payment shall therefore be made
on 5 March 2021.
5.2 The Player shall be entitled to a fixed monthly salary of Five Thousand US Dollars (US$5000).
In the event that the Player takes part in less than 80% of the official matches as a starter in one
season, his fixed monthly salary shall be reduced by 50% from the following season onwards, and
shall remain at this amount until the Player takes part in at least 80% of the official matches as a
starter in a subsequent season - at which point his salary shall revert to USD 2500.
3. In addition, clause 2 of the contract stipulated the following:
“A la fin de chaque saison, une evaluation sera faite pour determiner le niveau du rendement du
joueur. A la fin de cette evaluation, il sera decide de continuer avec le present contrat, de !'amender
ou tout simplement de le terminer par consensus.”
Free translation into English:
"At the end of each season, an evaluation will be made to determine the level of performance of the
player. At the end of this evaluation, it will be decided to continue with the present contract, to
amend it or simply to terminate it by consensus.
4. The contract further stipulated the following:
“10 RUPTURE POUR JUSTE CAUSE
Le Club peut mettre fin au present contrat pour juste cause sans preavis, ni indemnite.
11 RUPTURE SANS JUSTE CAUSE
Si le Joueur met fin au contrat sans juste cause ou si le Club met fin au contrat avec juste cause
conformement a !'article 10 precite, le Joueur. sera redevable d'une indemnite de 5.000.000 USD.
Free translation into English:
"10 TERMINATION FOR JUST CAUSE
The Club may terminate the present contract for just cause without notice or compensation.
REF FPSD-3840
11 TERMINATION WITHOUT JUST CAUSE
If the Player terminates the Agreement without just cause or if the Club terminates the Agreement
with just cause in accordance with Article 10 above, the Player shall be liable to pay compensation in
the amount of USD 5,000,000.
5. According to the player, on 2 July 2021, without any previous discussion, the club provided him with
a document with the following contents, which he refused to sign:
“Attestation de jeu (…)
Je soussigné (…) atteste que le joueur (…) a figuré sur la liste de nos effectifs pendant la saison 20202021 et qu’à partir du 1er juillet 2021 ne fait plus partie de cet effectif.
En accord avec l’article 2 de son contrat, il nous quitte libre de tout engagement
(…)
A partir de ce jour, il est libre d’exercer dans le club de son choix ».
Free translation into English:
"Certification of play (...)
I, the undersigned (...), hereby certify that the player (...) has been on our roster for the season 20202021 and that as of 1 July 2021 he is no longer on our roster.
In accordance with article 2 of his contract, he leaves us free of any commitment
(...)
From this day on, he is free to play for the club of his choice.”
6. The forementioned document included the following signature box:
7. On 13 August 2021, the player sent a first default notice indicating the following:
« Malheureusement, depuis le debut de notre relation contractuelle, vous avez constamment manqué
a votre obligation de paiement a man égard en me remunerant seulement a hauteur de 50% de mon
salaire pour les mois de fevrier a juillet 2021, soit un total de 15 000 USD au lieu de 30 000 USD,
conformement a l'artiele 5.2 de mon contrat qui prevoit expressement un salaire mensuel fixe de 5
000 USD.
Par consequent, je vous met en demeure de me payer dans les 10 prochains jours la somme de
15,000 (neuf mille) USD »
Free translation into English:
"Unfortunately, since the beginning of our contractual relationship, you have constantly failed to
meet your payment obligation towards me by paying me only 50% of my salary for the months of
February to July 2021, i.e. a total of 15,000 USD instead of 30,000 USD, in accordance with Article
5.2 of my contract which expressly provides for a fixed monthly salary of 5,000 USD.
REF FPSD-3840
Therefore, I am putting you on notice to pay me within the next 10 days the sum of 15,000 (nine
thousand) USD".
8. On 13 August 2021, the player subsequently received from the club a flight ticket for the journey
Abidjan-Lubumbashi, scheduled on 15 August 2021.
9. On 14 August 2021, the player replied to the club’s, expressing its surprise for receiving the air tickets
without any further explanation, while explaining that he could not immediately take the flight since
a PCR Test, which would take 48 hours.
10. On 14 August, the club replied as follows:
Comme vous l'indiquez, vous êtes contractuellement lié avec le TP Mazembe. Force est cependant de
constater que vous êtes absent du club, ce qui constitue une violation de vos obligations
contractuelles.
Le TP Mazembe n'a jamais manifesté la moindre intention de se séparer unilatéralement de vous,
mais vous a uniquement indiqué que vous n'entriez pas dans les plans – sportifs – du nouvel
entraineur.
Free translation into English:
As you say, you are contractually bound to TP Mazembe.
However, it must be noted that you are absent from the club, which constitutes a breach of breach
of your contractual obligations.
TP Mazembe has never shown the slightest to unilaterally par ways, but only indicated that you did
not fit into the sporting plans of the new coach.
11. On 16 August 2021, the player provided a replica, noting in particular that USD 15,000 remain
outstanding.
12. On 23 August 2021, the club sent a default notice to the player, indicating the following:
“je constate que vous n’êtes pas rentré à Lubumbashi dans le délai imparti malgré le billet d’avion
qui vous avait été envoyé.
Une telle attitude constitue clairement un manquement contractuel
Par la présente, je vous mets à nouveau en demeure de rentrer à Lubumbashi dans un délai de 3 jours
à compter de la réception de la présente. Dès lors que vous avez sciemment refusé d’utiliser le billet
d’avion mis par le Club à votre disposition, il vous appartient de supporter personnellement le coût
de ce billet de retour.”
Free translation into English:
"I note that you did not return to Lubumbashi within the time limit despite the plane ticket that was
sent to you.
Such an attitude clearly constitutes a breach of contract
I hereby give you further notice to return to Lubumbashi within three days of receipt of this letter.
Since you have knowingly refused to use the plane ticket made available to you by the Club, it is your
responsibility to personally bear the cost of this return ticket.
13. On 25 August 2021, the player replied as follows
« n'ayant manque a aucune obligation contractuelle, je vous lndlque que Je ne retournerai pas a
Lumbubashl avant que ne soit payee l'lntegrallte des sommes dues.”
REF FPSD-3840
Free translation into English:
"Not having failed to fulfil any contractual obligation, I hereby inform you that I shall not return to
Lumbubashl until the entire amount due has been paid.
14. On 2 September 2021, the club sent a correspondence to the player requesting to provide him with
his bank details.
15. On 9 September 2021, the player provided his bank details and requested the payment of an
outstanding amount of USD 22,5000 within 5 days.
16. On 16 September 2021, the player sent a termination letter with the following contents:
“Par courrier en date du 13 aout 2021, je vous ai mis en demeure de me payer les arrieres de
paiements dus en vertu du contrat de travail signe avec votre club le 1" fevrier 2021. Dans un courrier
en date du 23 aout 2021 vous m'avez confirme votre intention de proceder au paiement des arrieres
avant le 28 ao0t 2021. De bonne foi, j'ai done attendu. Aucun paiement n'ayant ete effectue, je vous
ai done a nouveau mis en demeure une deuxieme fois par un courrier en date du 25 ao0t 2021. Enfin
et suite a votre courrier du 2 septembre 2021, je vous ai une nouvelle fois mis en demeure de
regulariser la situation tout en vous transmettant toutes les informations necessaires. Ace jour, je
constate que mon dernier courrier est demeure sans reponse et qu'aucun paiement n'a ete effectue
par VOS services. Ainsi, par la presente, je mets formellement fin a mon contrat de travail avec juste
cause et avec effet
immediat.”
Free translation into English:
"By letter dated 13 August 2021, I gave you formal notice to pay me the outstanding payments due
under the employment contract signed with your club on 1 February 2021. In a letter dated 23 August
2021 you confirmed your intention to proceed with the payment of the outstanding payments before
28 August 2021. In good faith, I have waited. As no payment was made, I gave you a second formal
notice by letter dated 25 August 2021. Finally, following your letter of 2 September 2021, I once
again gave you formal notice to regularise the situation and sent you all the necessary information.
To date, I note that my last letter has remained unanswered and that no payment has been made by
YOUR services. Thus, I hereby formally terminate my employment contract with just cause and with
immediate effect."
17. The player informed FIFA that he subsequently remained unemployed.
18. On 30 September 2021, the player Ibrahima Diaby lodged a claim before FIFA for outstanding
remuneration and breach of contract without just cause and requested the paymnt of the following
amounts:
- USD 7,800 as outstanding remuneration, plus 5% interest p.a. as from the due dates, detailed as
follows:
22 500 USD, corresponding to half of the monthly salaries from March 2021 to July 2021, i.e. 12
500 USD (2 500*5, and the full monthly salaries of February 2021 and August 2021, i.e. 10 000
USD (5 000*2).
Minus USD 14,700, which were paid by the club on 16 September 2021.
- USD 345,000 as compensation for breach of contract without just cause, plus 5% interest p.a.
as from 16 September 2021, detailed as follows:
• 50 000 USD for the sporting season 2021/2022 (from September 2021 to June 2022);
REF FPSD-3840
-
• 60 000 USD for the sporting season 2022/2023 (from July 2022 to June 2023);
• 60 000 USD for the sporting season 2023/2024 (from July 2023 to June 2024);
• 60 000 USD for the sporting season 2024/2025 (from July 2024 to June 2025);
• 60 000 USD for the sporting season 2025/2026 (from July 2025 to May 2026).
USD 5,000 as legal costs.
19. In the opinion of the player, the club clearly displayed having no interest in his services.
20. In its reply to the claim, the club rejected the arguments of the player and simultaneously lodged a
counterclaim.
21. The club explained that it paid USD 15,000 on 7 September 2021, and not on 16 September 2021,
as indicated by the player (cf. point 18 above).
22. The club provided the following document in support of its allegation (note: the document is
practically illegible in the original PDF file):
23. In particular, the club explained that the player only arrived to Lubumbashi on 2021 as we could not
arrive earlier since he had a positive COVID-19 test.
24. The club further stated that the player did not participate in any match.
25. As a result, according the club, the player undertook discussions with the Club to reach an amicable
termination of the contractual relationship and to be able to find playing time at another club.
26. In this context, the Club offered the player the opportunity to sign a “playing certificate”, but argued
that no agreement could be reached and the parties therefore decided to continue the relationship.
27. The club explained that the player left on holidays and never returned. According to the club, he
provided him with an air ticket to return on 15 August 2021, but he never did so.
28.
The club explained that it lodged a criminal complaint before the Courts of Congo DR, insofar a
provided bank certificate of 16 September are considered to be forged.
29. In view of the above, the club requested the suspension of the proceedings until the criminal justice
would render a decision concerning the default notices.
REF FPSD-3840
30. On a subsidiary basis, the club considered that the player terminated the contract without just cause.
31. In particular, the club considered that, following art. 14 bis of the RSTP, the player failed to grant a
15-days deadline.
32. In addition, the club was of the opinion that the player failed to meet his contractual obligations, and
referred to a decision of the DRC according to which an absence of three weeks is a just cause to
terminate the contract (04190658-E).
33. In view of the above, the club requested the payment of compensation in accordance with article 11
of the contract, i.e. in the amount of USD 5,000,000.
34. The club considered that the clause is not excessive since the contract was for a long period (i.e. five
years) and the player forged some documents in order to obtain an unjust enrichment.
35. The club considered in this regard that the possible excessive nature of the penalty clause can never
lead to its nullity the nullity of the clause, but only its possible reduction.
36. On a subsidiary basis, the club requested to limit the payment of compensation by the player to USD
128,666.
37. In addition, the club requested the reimbursement of an amount of USD 1,130 as unduly paid salary,
insofar he was contractually entitled to receive the following amounts:
- February 2021: 0 USD ;
- From 1 March 2021 to 31 July 2021: 25,000 USD (5 x 5,000 USD);
- From 1 August 2021 to 17 August 2021: USD 1,370 (17/31 x USD 2,500).
Whereas USD 12,500 was paid between March and July 2021, and USD 15,000 on 7 September.
38. In his replica, the player stated that he never received a visa from the club to return in August 2021.
39. The player further noted that is also noteworthy that the Club did not provide any proof of having
requested a visa to the competent authorities or the administrative procedures thereof.
40. The player also stated that that the Club did not provide any proof of having requested a visa to the
competent authorities or the administrative procedures thereof.
41. The player explained that he was indeed absent, but this was completely justified due to the course
of the events.
42. In this respect, the player stated that, had the Club deemed that I was absent without any justification,
the procedure to follow was to request his return and to subsequently open disciplinary proceedings,
while ensuring that his right to due process was respected.
43. The player underlined that, when the Club unexpectedly sent me a plane ticket on the night of 13
August 2021, it was impossible for me to travel not only due to the reason stated above but also
because of the issues with my visa , the need for a PCR-test and the extremely short delay imposed
by the Club to travel.
REF FPSD-3840
44. The player further argued that if the Chamber were to determine his absence was not justified, it
should bear in mind that the Club was definitely not in a position to assert its disciplinary power over
me as they were themselves in a situation of breach of contract.
45. According to the player, he did not initiate any discussion to mutually terminate the contract. The
player indicated that “in reality, the Club initiated the discussions. The fact that the so-called
"Attestation de Jeu" was already signed by the Club when provided to me confirms this.”
46. In addition, the player explained Club threatened to confiscate his passport should he refuse to sign
the so-called "Attestation de Jeu" just before my departure on 5 July 2021.
47. As to the salary of February 2021, the player underlined that the contract was valid as from 1 February
2021 and that he should be paid for said month.
48. The player further insisted that he is entitled to his full salary of 1 August 2021, and the reduction to
half of his salary if he did not participate in 80% of the matches shall be considered as potestative.
49. The player insisted that the club only paid USD 14 700 on 16 September (i.e. after the termination of
the contract), and provided the following document in support of its allegation:
50. As to the criminal procedure concerning the alleged forgery of the bank document establishing that
he was paid on 16 September 2022, the player considered it to be “farcical”, and explained that he
never received any notification in this regard.
51. In addition, the player argued that there is no evidence supporting the allegation that the default
notices would be forged.
52. As to the termination of the contract, the player explained that, to avoid any misunderstanding, it is
recalled that I did not only based his termination on article 14bis but also on article 14 since the
Club's lack of interest in maintaining the contractual relationship was observed in various behaviours
and breaches and that the amount of overdue salaries exceeded (extensively) two monthly salaries.
53. The player noted that the pattern of violations instituted by the Club throughout the employment
relationship is in itself sufficient to establish the just cause without having to rely solely on article
14bis.
54. As to the compensation requested by the club, the player indicated that the liquidated damage clause
in clause 11 of the contract embodies the abusive nature of the employment relationship established
by the Club, since the non-reciprocal clause of USD 5,000,000 corresponds to 1,667 monthly salaries,
which amounts to 83 years of work.
55. In its duplica, the player insisted in the suspension of the proceedings in view of the existence of a
related criminal procedure.
REF FPSD-3840
56. The club stated that “there is nothing dilatory about this criminal complaint and an investigation is
currently underway.”
57. The club insisted that the player did not submit any official evidence of the sending and reception of
the alleged default notice.
58. The club insisted that the evidence of payment of USD 15,000 on 7 September is forged due to the
following contents:
(i) No bank transaction can take 9 days, i.e. the time between the date of the swift and the date of
alleged receipt of the funds;
(ii) While the swift clearly refers to a transfer of 15,000 USD, the amount in FCFA on the bank
statement would correspond to 14,700 USD;
(iii) The references on the swift and the bank statement differ; while the swift mentions "payment of
outstanding salary", the bank statement only mentions "salary".
59. The club insisted in the payment of compensation in the amount of USD 5,000,000.
REF FPSD-3840
II Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the 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 30 September 2021 and submitted for decision on 24 March 2022.
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.
2. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 (August 2021 edition, it 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 Congolese club.
3. Subsequently, the DRC analysed which regulations should be applicable as to the substance of the
matter. In this respect, he / she 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 30 September 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
4. 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 Transfer Matching System (TMS).
c. Admissibility
5. The Chamber noted that the Respondent requested the suspension of the proceedings before FIFA
since two default letters were allegedly forged. However, the Chamber understood that the evidence
gathered during the investigation does not provide a legal basis for said suspension, insofar there is
no strong and convincing evidence that would determine that the outcome of the present matter is
contingent to the results of the alleged criminal proceedings.
d. Merits of the dispute
REF FPSD-3840
6. 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.
i.
Main legal discussion and considerations
7. The Chamber first observed that, on 1 February 2021, the player Ibrahima Diaby and TP Mazembe
concluded an employment contract valid for five seasons, i.e. from 1 February 2021 until 31 May
2026, according to which he was entitled to a monthly salary of USD 5,000.
8. Subsequently, the Chamber noted that, on 30 September 2021, the player lodged a claim
before FIFA for outstanding remuneration and breach of contract without just cause. In particular,
the Chamber observed that the player argued that, after having put the club in default for
outstanding remuneration, he terminated the contract on 16 September 2021.
9. On the other hand, the Chamber took the club’s position into account, and noted that the later
rejected the claim of the player and simultaneously lodged a counterclaim. According to the club,
the player left on holidays and never returned.
10. In view of the above, the Chamber understood that the main legal issue at stake is to determine
whether the player had a just cause to terminate the contract, and to determine the consequences
thereof.
11. In this regard, the Chamber considered of utmost important to recall the main sequence of events
that led to the aforementioned situation.
12. In particular, the Chamber observed that, on 2 July 2021, without any previous discussion, the club
provided him with a document with the following contents, which he refused to sign:
« “Attestation de jeu (...)Je soussigné (...) atteste que le joueur (...) a figuré sur la liste de nos effectifs
pendant la saison 2020-2021 et qu’à partir du 1er juillet 2021 ne fait plus partie de cet effectif.En
accord avec l’article 2 de son contrat, il nous quitte libre de tout engagement(...)A partir de ce jour,
il est libre d’exercer dans le club de son choix ».
Free translation into English:
"Certification of play (...)I, the undersigned (...), hereby certify that the player (...) has been on our
roster for the season 2020-2021 and that as of 1 July 2021 he is no longer on our roster.In accordance
with article 2 of his contract, he leaves us free of any commitment(...) From this day on, he is free to
play for the club of his choice.”
13. In relation to the aforementioned letter, the Chamber observed that it contains the necessary
elements to be considered as an act of unilateral termination.
REF FPSD-3840
14. Indeed, a majority of the Chamber considered that this document in principle establishes a unilateral
termination in accordance with art. 2 of the contract, i.e. due to a negative evaluation of his
performance.
15. The Chamber further noted that the document is signed by the club and it does not require the
player’s acceptance, despite the existence of a signature box for him. As such, a majority of the
Chamber concurred that it can be qualified as a unilateral act.
16. Nevertheless, the Chamber then observed that the Club, on 14 August 2021, sent a correspondence
to the player, indicating that it “has never shown the slightest intention to unilaterally part ways”
(Le TP Mazembe n'a jamais manifesté la moindre intention de se séparer unilatéralement de vous,
mais vous a uniquement indiqué que vous n'entriez pas dans les plans – sportifs – du nouvel
entraineur.), while (as acknowledged by the player), continued to pay his remuneration to a certain
extent.
17. As a result, the Chamber considered that, in this specific matter, the behaviour of the parties would
lead to conclude that the document of 2 July 2021 became null and void, and as a result, the parties
resumed their contractual relationship.
18. However, the Chamber then noted that, on 16 August 2021, the player sent a letter to the club,
underlining that the amount of USD 15,000 remain outstanding. The player then insisted on 9
September 2021 with a new default notice, requesting the amount of USD 22,500 within 5 days,
prior to terminating the contract on 16 September 2021.
19. The Chamber then took note of the club’s position, which argued that, in any case, it paid the
amount of USD 15,000 on 7 September 2021 a few days earlier, but that this does not alter some
elements affecting the contractual stability between the parties. In addition, the club argued that
that the player left on holidays and never returned. According to the club, he provided him
with an air ticket to return on 15 August 2021, but he never did so.
20. In relation to this last issue, the DRC observed that the player argued that the player stated that he
never received a visa from the club to return in August 2021.
21. In addition, the Chamber noted that the player underlined that when the club “unexpectedly sent
[him] a plane ticket on the night of 13 August 2021, it was impossible for [him] to travel not only
due to the reason stated above but also because of the issues with my visa , the need for a PCRtest and the extremely short delay imposed by the Club to travel.”
22. In view of the above, the Chamber considered that the main legal issue at stake is to determine
whether the player had a just cause to terminate the contract on 16 September 2021.
23. In this regard, the Chamber first wished to emphasize that, in any case, it is not denied that the
club paid with significant delay.
REF FPSD-3840
24. Moreover, as to the player’s absences, the Chamber also noted that the club provided air tickets to
the player with unreasonably short deadlines (particularly taking into account the context of the
COVID-19 pandemic), without providing any further explanation, only to subsequently
complain about the player’s non-return.
25. In relation to this last issue, the Chamber wished to underline the contents of art 14 par. 2 of the
Regulations, which establish that “any abusive conduct of a party aiming at forcing the counterparty
to terminate or change the terms of the contract shall entitle the counterparty (a player or a club)
to terminate the contract with just cause.”
26. Moreover, as to the player’s return to Congo DR, the Chamber underlined that there is no evidence
that the club assisted the player in obtaining a visa to return to the country, although this obligation
usually lies on the employer.
27. In view of the above, and taking into account a comprehensive view of the situation, the Chamber
considered that, regardless of the outstanding payments on 16 September 2022, the player
could believe in good faith that the club was not interested in pursuing the contractual
relationship.
28. As a result, the Chamber established that the player had a just cause to unilaterally terminate the
contract on 16 September 2022 and that, as a result, he is entitled to compensation.
ii.
Consequences
29. The Chamber turned its attention to the question of the consequences of such unjustified breach
of contract committed by the Respondent.
30. However, before entering into the calculation of the compensation, the Chamber wished to
determine the outstanding dues of the player, as he is entitled to receive his outstanding
remuneration until 16 September 2021.
31. In this regard, the Chamber noted that clause 5.1 of the contract stipulated a variable salary
depending on the player’s participation. Yet, in the opinion of the Chamber, this variable nature of
the salary depends on the player’s participation in matches, and is therefore of a potestative nature:
only the club can ultimately decide over this.
32. As a result, the Chamber decided to consider to all effects the player’s maximum salary, i..e. USD
5,000 net. The Chamber further observed that the player acknowledged that he was paid 50%
between February until June 2021, i.e. USD 2,500 net per month.
33. Therefore, the Chamber established that the club shall pay the rest of the player’s remuneration
for said period, i.e. 2,500*5 = USD 17,500.
REF FPSD-3840
34. However, the Chamber noted that the player acknowledged having been paid the amount of USD
14,700 in September 2021.
35. As a result, the Chamber established that the outstanding remuneration due by the club to the
player corresponds to USD 2,800 (i.e. 17,500 – 14,700).
36. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the
Chamber 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, i.e. USD 2,800, as explained
above.
37. In addition, taking into consideration the Claimant’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on
the outstanding amounts as from the due dates until the date of effective payment.
38. Having stated the above, the Chamber 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 Chamber 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.
39. In application of the relevant provision, the Chamber held that it first of all had to clarify 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.
40. In this regard, the Chamber took note of the wording of clause 10 of the contract, which
established the following:
“10 RUPTURE POUR JUSTE CAUSE
Le Club peut mettre fin au present contrat pour juste cause sans preavis, ni indemnite.
11 RUPTURE SANS JUSTE CAUSE
Si le Joueur met fin au contrat sans juste cause ou si le Club met fin au contrat avec juste cause
conformement a !'article 10 precite, le Joueur. sera redevable d'une indemnite de 5.000.000 USD.
Free translation into English:
REF FPSD-3840
"10 TERMINATION FOR JUST CAUSE
The Club may terminate the present contract for just cause without notice or compensation.
11 TERMINATION WITHOUT JUST CAUSE
If the Player terminates the Agreement without just cause or if the Club terminates the Agreement
with just cause in accordance with Article 10 above, the Player shall be liable to pay compensation
in the amount of USD 5,000,000.”
41. After analysing the content of the aforementioned clause, the Chamber concluded that it did not
fulfil the criteria of reciprocity and proportionality, in line with the Chamber’s longstanding
jurisprudence, and therefore could not be taken into account for establishing the amount of
compensation payable to the Claimant. In particular, the Chamber noted that the clause is
manifestly disproportionate as it grants a right to the club to terminate the contract without any
compensation, while obliges the player for such circumstance to pay a very significant amount of
USD 5,000,000.
42. As a consequence, the Chamber determined that the aforementioned clause shall be deemed as
null and void. As a result, the amount of compensation payable by the Claimant to the Respondent
had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations.
The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to
be taken into consideration when calculating the amount of compensation payable.
43. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the
calculation of the monies payable to the player under the terms of the contract until its term.
Consequently, the Chamber concluded that the amount of USD 285,000 (i.e. USD 5,000 , from
September 2021 until 31 May 2026, 57 months*5,000) serves as the basis for the determination
of the amount of compensation for breach of contract.
44. In continuation, the Chamber verified whether the player had signed an employment contract with
another club during the relevant period, by means of which he would have been enabled to reduce
his loss of income. According to the constant practice of the Chamber 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.
45. The Chamber further noted that that the player subsequently remained unemployed and therefore
did not mitigate his damages.
46. Consequently, on account of all of the above-mentioned considerations and the specificities of the
case at hand, the Chamber decided that the club must pay the amount of USD 285,000 to the
player, which was to be considered a reasonable and justified amount of compensation for breach
of contract in the present matter.
REF FPSD-3840
47. Lastly, taking into consideration the coach’s request as well as the constant practice of the Chamber
in this regard, the latter decided to award the coach interest on said compensation at the rate of
5% p.a. as of the date of claim until the date of effective payment.
48. As a logical consequence of the above, the Chamber further established that the counterclaim of
the club had to be rejected.
49. 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.
50. Furthermore, 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.
51. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
iii.
Compliance with monetary decisions
52. 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.
53. In this regard, the Chamber 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.
54. Therefore, bearing in mind the above, the Chamber decided that the club must pay the full amount
due (including all applicable interest) to the player within 45 days of notification of the decision,
failing which, at the request of the creditor, 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 club in accordance with art. 24 par. 2, 4, and 7
of the Regulations.
55. The club shall make full payment (including all applicable interest) to the bank account provided by
the player in the Bank Account Registration Form, which is attached to the present decision.
56. The Chamber 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.
REF FPSD-3840
e.
Costs
57. 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.
58. Furthermore, 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.
59. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
REF FPSD-3840
III Decision of the Dispute Resolution Chamber
1.
The claim of the player, Ibrahima Diaby, is admissible.
2.
The claim of Mr Ibrahima Diaby is partially accepted.
3.
The Respondent, TP Mazembe, has to pay to the player, the following amounts:
- USD 5,300 as outstanding remuneration plus 5% interest p.a. as from 6 September 2021 until
the date of effective payment;
- USD 285,000 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 30 September 2021 until the date of effective payment.
4.
Any further claims of the player are rejected
5.
The counterclaim of TP Mazembe is rejected.
6.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
7.
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.
TP Mazembe 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.
8.
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.
9.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-3840
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).
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