Labour Disputes
Texto da decisão
REF. FPSD-11660
Decision of the
Dispute Resolution Chamber
passed on 8 February 2024
regarding an employment-related dispute concerning
the player Yacouba Doumbia
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Andre DOS SANTOS MEGALE (Brazil), member
Stijn BOEYKENS (Belgium), member
CLAIMANT:
Yacouba Doumbia, Mali
Represented by Slim Boulasnem
RESPONDENT:
Arabi SC, Kuwait
Represented by SILA International Lawyers
pg. 2
REF. FPSD-11660
I. Facts of the case
1.
On 31 August 2022, the Malian player, Yacouba Doumbia (hereinafter: the Claimant or the
player) and the Kuwaiti club, Arabi SC (hereinafter: the Respondent or the club) concluded an
employment contract valid as from the date of signature until 30 June 2023 (hereinafter:
the first contract).
2.
Clause 2 of the first contract reads as follows:
“I- [The club] pays to [the player] a total sum of 80,000 USD for this contract only
(eighty thousand dollars only) divided as follows:
- 8000 USD (eight thousand Dollars only) to be paid at the end of each month as
monthly salary of for a period of 10 months only.
2- [The club] provides furnished housing for the second party.
3- [The club] provides [the player] with a car to attend the official training and
matches.
4- [The club] grants [the player] 3 economy class tickets to and from its original
country of origin once during the sports season as following:
One ticket for the player.
One ticket for his wife.
One ticket for his son.”
3.
Clause 3 of the first contract reads as follows:
“1- [The player] is committed to all sports strengthening programs and treatment
programs decided by [the club], and he must adhere to the programs and prove his
commitment 10 them even during the paid vacation in the manner determined by the
[the club].
2- [The player] is prohibited from influencing, placing bets or from doing that via third
parties on Football matches in general and, in particular, on the Club’s matches,
including but not limited to, individual match actions, results, or league standings as
well as to refrain from any involvement whatsoever in match fixing and/or any similar
activity. In addition, to immediately report to the Club of any direct or indirect attempt
pg. 3
REF. FPSD-11660
to persuade him and/or his teammates for influencing in an unfair and/or illegal way
the match results.
3- [The player] is prohibited from using means and methods or any other behavior
that is identified as doping, in particular, but not limited to, under the law of the World
Anti-Doping Agency, and the laws and regulations of the International Football
Association / AHF / Kuwait Football Association and the Olympic Committee and/or
any other regulations, directives and/or lists regulating this matter in their applicable
version from time to time, and Player expressly acknowledges and confirms that
doping is prohibited in all its forms and types.
4- [The player] undertakes to play for Al-Arabi Sporting Club only and shall respect
the game laws at all matches which he participates.
5- [The player] shall bear any fine imposed b)" the game association for violating the
federation regulations. will be deducted from his monthly salary.
6- It is forbidden for [the player] to go to the club's management or refer to the
specialized employees except through the direct manager of the game.
7- [The player] provides the necessary documents that allow [The club] to register
him in the international transfer system and the records of the first party in the Kuwaiti
Football Association.
8-[The player]undertakes to comply with the laws of the country and the regulations
and rules of Kuwait Football federation, continental federation and the international
federation.
9- [The player] is obliged to take care of any property including, but not limited to,
any car and/or equipment which has been provided or made available to the player
by the club in relation to this employment. Upon termination of this contract for any
cause or its expiration, the player shall immediately return to the club in a proper
condition any property which has been provided or made available to him by the club
in relation to this employment.
10-[The player] undertakes that he will not be associated with any work inside Kuwait
nor is it permissible for him, without the written consent of [the club], to participate
pg. 4
REF. FPSD-11660
in any other sporting activities. The player must maintain his fitness and health and
not expose them to danger.
11- [The player] isn’t allowed to accept any kind of bonuses from external persons,
unless authorized by the club.
12- [The player] is prohibited from making any media statements or comments to all
media (newspapers – radio – television – social networking sites) or speaking with the
masses regarding the team. Game, players, referees, club or game federation
regarding them without obtaining approval Presets by club management and team
management.
13-[The player] is not entitled to claim the first party for any insurance or pension to
his heirs upon the expiry of the contract term or claim any compensation in case of
terminating the contract.”
4.
On 23 January 2023, the board of directors of the club decided inter alia “to remove the
professional player, Yacouba Doumbia, the first football team player from records of Al-Arabi
Sporting Club at Kuwaiti Football Association and address the association in this concern.”
5.
On 25 January 2023, the player was deregistered from the Kuwait Football Association
(KFA).
6.
The club sent the player a notice of termination dated 28 January 2023 (hereinafter: the
termination notice) in which it was stated that the player did not comply with the obligations
set forth in clause 3 of the first contract. It should be noted that the parties dispute the
date when such document was sent. According to the club, it was originally drafted on 28
March 2023, allegedly amended on 15 May 2023, and backdated to 28 January 2023.
According to the player, the termination notice was drafted and sent in January 2023.
7.
On 6 February 2023, the club won the Crown Prince Football Cup, and the player joined the
celebration of the title.
8.
On 1 May 2023, the player and the club allegedly concluded a second employment contract
(hereinafter: the second contract) valid as from the date of signature until the end of the
season 2022/2023. The validity of this contract is challenged by the club.
9.
Clause 2 of the second contract reads as follows:
“1- [The club] pays to [the player] a total sum of 45,000 USD for this contract only
(Fourty five thousand United States Dollars only).
pg. 5
REF. FPSD-11660
2- [The club] provides furnished housing for the second party inside the club.
3- [The club] provides [the player] with a car to attend the official training and
matches.
4- [The club] grants [the player] 1 flight ticket to and from its original country
(economy class) for him once during the season.”
10. Between 14 and 15 May 2023, the club and the legal representative of the player exchanged
correspondences via the application WhatsApp, including:
-
The termination notice.
-
The second contract.
-
The following messages (quoted verbatim, translation provided by the Respondent):
“14/05/2023, 20:00 [legal representative of the player]: Amir I will speak with you
tomorrow between 10:00 and 11:00 in Tunisia Time
14/05/2023, 20:03 - Amir Bouraoui [club]: OK
14/05/2023, 20:03 - Amir Bouraoui [club]: We need to gain the time
15/05/2023, 09:44 [legal representative of the player]: Amir send me all papers
signed and sealed by the club and the player will sign after one hour
15/05/2023, 11:59 - Amir Bouraoui [club]: Salim please as soon as possible because
they need to send it today to be able to play next Friday
30/05/2023, 09:46 - Amir Bouraoui [club]: Rappel moi
30/05/2023, 09:49 - Amir Bouraoui [club]: Salim I did it before with Aymen Mahmoud
and nothing happened the process is correct
30/05/2023, 09:53 [legal representative of the player]: He signs a receipt from the
club or the president 45,000 otherwise he returns when they have the money they
transfer for his commission I am guarantor
30/05/2023, 09:54 - Amir Bouraoui [club]: Ya slim the contract is 40,000 thousand you
know that we wanted him to participate
30/05/2023, 09:55 - Amir Bouraoui [club]: Don’t put me in a problem with the club
pg. 6
REF. FPSD-11660
30/05/2023, 09:55 - Amir Bouraoui [club]: I asked them if you want him to participate
then give him extra 5000”.
11. On 17 May 2023, the KFA asked FIFA whether it was possible to re-register the player
outside of the registration period.
12. On 29 June 2023, the player put the club in default and requested payment of USD 45,000
corresponding to the unpaid salary in accordance with the second contract, setting a 10days’ time limit in order to remedy the default.
13. In accordance with Transfer Matching System (TMS), the Kuwaiti season 2022/2023 ended
on 1 June 2023.
14. On 1 July 2023 (i.e., after the second contract would have ended), the player signed an
employment contract with the Lebanese club Al Ansar, valid as from the date of signature
until 31 May 2024. The player is entitled to the following amounts:
-
USD 20,000 payable on 1 July 2023.
-
A monthly salary between 31 August 2023 and 31 May 2024 of USD 6,000, payable
at the end of each month.
-
USD 5,000 as bonus in case the Al Ansar wins the Lebanese League Title.
-
USD 3,000 as bonus in case Al Ansar wins the Lebanese Cup title.
15. On 6 July 2023, the club paid the player USD 43,382. As per the bank statement, the
following message was added “the rest of the dues of the football player Yacouba Doumbia in
the 2022 2023 season”.
16. On 12 July 2023, the player informed the club that he received USD 43,382 and that there
was a remaining amount to be paid of USD 1,618. The player requested the club to remedy
the default.
II. Proceedings before FIFA
17. On 4 September 2023, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a. Claim of the Claimant
pg. 7
REF. FPSD-11660
18. The player lodged a claim for breach of contract. In his claim, the player argued that the
club terminated the first contract without just cause.
19. In view of the foregoing, the player requested the following:
-
The residual value of the first contract: USD 40,000 corresponding to the salaries
between February 2023 and June 2023 plus 5% interests as from the 1st day of the
next month (e.g., for February as from 1 March 2023). The player stressed that “in
view of the extremely abusive nature of the club's behaviour, the player requested to not
deduct the second contract from the first contract, since a formal notice relating to the
second contract has been issued”.
-
Subsidiarily, the payment of USD 24,000 corresponding to the salaries between
February 2023 and April 2023 plus 5 % interests as from 1st day of the next month
(e.g., for February as from 1 March 2023).
-
Due to the abusive behaviour of the club, “the salary of the season as additional
compensation”.
-
Sporting sanctions to be applied on the club.
-
The balance of the second contract: USD 1,618 plus 5% interest as from 31 May 2023.
-
EUR 5,000 as legal fees.
b. Reply of the Respondent
20. In its reply, the Respondent requested FIFA to dismiss the claim on the following grounds:
-
The club deregistered the player with his consent and following it, he continued to
be part of the club’s team.
-
The club and the legal representative of the player discussed the possibility “to
reregister the Claimant as an unemployed professional for the rest of the 2022/2023
season in Kuwait and, for this reason, created and exchanged over WhatsApp a
termination letter backdated January 2023 […] and a sham contract backdated May 1,
2023 […]”.
-
The club referred to the Court of Arbitration for Sport (CAS) and Swiss Federal
Tribunal (SFT) jurisprudence and concluded that:
“the parties backdated the termination letter which was created on May 15, 2023 […]
and entered into the sham contract [the second contract] in mid -May […]
simultaneously in order to conceal the existence of the [first contract] (which was still
pg. 8
REF. FPSD-11660
ongoing at the time) to try to reregister the Claimant with KFA for the rest of the
2022/2023 season. However, KFA refused to register the Claimant and the contractual
simulation was moot.
Consequently, the termination letter backdated January 2023 […] and the sham
contract […] must be considered a simulated act. The consequences are twofold: on
the one hand, the termination letter backdated January 2023 and the sham contract
[the second contract] are without legal effect, and on the other hand [the first
contract] is deemed valid.”
21. In support of its argumentation, the club filed inter alia the (i) the club's board decision to
deregister the player on 23 January 2023; (ii) evidence of the player's deregistration from
KFA in January 2023; (iii) the player’s photos with the Crown Prince Cup on 6 February 2023;
(iv) WhatsApp messages between the parties on 14 and 15 May 2023; (v) metadata
allegedly supporting that the termination notice was backdated to 28 January 2023 (); (vi)
letter to FIFA concerning the player’s reregistration on 17 May 2023; and (vii) payments
statements.
22. As a result, the club concluded that (i) it owed the Claimant USD 40,000 as salaries from
February to June 2023 and paid USD 43,382, therefore, the Claimant’s request must fail; (ii)
the first contract terminated upon its expiry date on 30 June 2023, therefore, the
compensation for breach of contract lacks contractual basis; (iii) “It is well-settled DRC and
CAS jurisprudence that a party to a horizontal dispute does not have standing to sue for the
imposition of sporting sanctions, which is an issue of vertical nature between FIFA and the
counterparty”; and (iv) the Claimant’s request for legal costs is inadmissible.
c. Rejoinder of the Claimant
23. In his rejoinder, the Claimant contested the arguments provided by the Respondent and
stressed that the club provided inaccuracies as to the facts.
24. The player firstly indicated that he was injured in December 2022 and the club informed
him orally of its intention to terminate the contract, however he refused to accept it.
Following it, the club unilaterally terminated the first contract. In the player’s view, the
pictures provided by the club as evidence did not prove the acceptation of the termination
as mentioned by the latter.
25. As to the termination notice, the player argued that this was not backdated, and that it
followed the decision of the club.
26. In accordance with the player, following his injury, the club had no more defenders or
quality defenders to play in the tournament, reason why the club contacted the legal
representative of the player in May 2023.
pg. 9
REF. FPSD-11660
27. As to the metadata provided as evidence by the club, the player maintained that it did not
prove that the dates were modified and insisted that the first contract was unilaterally
terminated in January 2023, otherwise, the club would have just reregistered the previous
contract and not created a new one (i.e., the second contract). For the player, this was also
confirmed by the letter sent by the KFA to FIFA.
28. The player concluded as follows (freely translated to English):
“The club presents false arguments.
The situation is clear and the documents prove it: the club de-registered the player
and terminated contract in January, without informing the player. They let him train
just in case they needed him, keeping him in the dark. When they needed the player,
they offered him a new contract and registered him again.
The calculation was presented in a false manner and the answers were intended to
mislead the judge and distort the decision.”
29. The requests for relief remained unchanged.
d. Final comments of the Respondent
30. In its final comments, the Respondent confirmed its position and indicated inter alia the
following:
-
The club did not make any verbal offer to terminate the first contract and the player
did not provide any evidence to support it.
-
The parties agreed to deregister the player without terminating the first contract, the
board decision was taken by mutual agreement, and the player did not object the
deregistration leading to a situation of venire contra factum propium.
-
The first contract was not terminated considering that (i) the Claimant failed to prove
that he received the termination notice on 28 January 2023; (ii) the Claimant
continued to be part of the Respondent’s team as per the evidence provided; and (iii)
the termination notice, and the second contract were created in May 2023.
-
The club reiterated its position that the termination notice, and the second contract
shall be considered as a simulated act, otherwise there would be no purpose in
having a new contract for 2 weeks.
-
Finally, as to the termination date, the club reiterated its position that the
termination notice was created on 28 March 2023, modified on 15 May 2023, and
that the second contract was backdated to 1 May 2023. Moreover, the club indicated
pg. 10
REF. FPSD-11660
that it was not possible to register the player with his previous contract (i.e., the first
contract) as in accordance with art. 6 of the Regulations on the Status and Transfer
of Players (RSTP), only an unemployed professional could enjoy the exception to be
registered outside the registration periods and this was the reason why a sham
contract (i.e., the second contract) was created.
31. In view of the foregoing, the club requested to dismiss the claim insofar it is admissible.
pg. 11
REF. FPSD-11660
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
32. 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 4 September 2023 and
submitted for decision on 8 February 2024. Taking into account the wording of art. 34 of
the March 2023 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.
33. Furthermore, 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 par. 1 lit. b)
of the Regulations on the Status and Transfer of Players (February 2024 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 Malian player
and a Kuwaiti club.
34. 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 (February 2024 edition), and
considering that the present claim was lodged on 4 September 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
35. 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
36. 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 above-mentioned 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.
pg. 12
REF. FPSD-11660
i. Main legal discussion and considerations
37. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that it pertains to a claim for breach of contract in which
the parties strongly dispute the validity of the termination notice and the second contract.
38. According to the Claimant, the club terminated the first contract via the termination notice
sent on 28 January 2023 without just cause, entailing that he should be entitled to
compensation for breach of contract. In addition, the club should pay the balance due
under the second contract. The Claimant further stated that he never agreed to be
deregistered.
39. On the other hand, the club stressed that the first contract had not been terminated and
that the player had been deregistered with his consent. Moreover, the termination notice
and the second contract were not valid and were only created in order to re-register the
player, which should be considered as a simulated act incapable of triggering any
compensation.
40. In view of the foregoing, the Chamber acknowledged that its task was to determine which
was the valid contract (i.e., the first and/or the second contract) and its consequences.
41. In this context, the Chamber initially acknowledged that the parties advanced contrasting
narratives and evidence as to the events taking place in the first semester of 2023.
Nevertheless, the DRC noted that despite the different views, the parties agreed on the
following:
-
The club performed the following payments to the player:
KWD 2,460 (which would correspond to USD 8,000) paid via cheque on
13.09.2022
KWD 2,460 paid via cheque on 14.11.2022
KWD 4,896 paid via cheque on 14.02.2023
KWD 2,450 paid via cheque on 13.03.2023
USD 43,382 paid on 6 July 2023.
-
On 29 June 2023, the player requested payment of the amount of USD 45,000.
-
On 12 July 2023, the player informed the club that he received USD 43,382 and the
remaining amount to be paid amounted to USD 1,618.
42. In view of the above, the Chamber deemed that the behaviour of the parties in the case at
hand was decisive to establish that the second contract was the only valid and binding
document between them. In particular, the DRC found it essential that: (i) neither of the
pg. 13
REF. FPSD-11660
parties made any comment or reservation as to the first contract; (ii) the player expressly
pointed out in two occasions (i.e. on 29 June 2023 and on 12 July 2023) that the amount
due by the club was USD 45,000 which corresponds to the amount indicated in the second
contract; (iii) the player confirmed in his second default notice of 12 July 2023 that the only
amount was USD 1,618, once again corroborating that he was in fact seeking the USD
45,000 mentioned in the second contract; and (iv) the club, on its turn, paid USD 43,382 to
the player, exceeding the USD 40,000 mentioned in the first contract, and again suggesting
that he was entitled to the USD 45,000 agreed upon in the second contract.
43. The Chamber was furthermore comforted with such conclusion by considering that the
player has never raised the alleged termination without just cause by the club during the
exchange of notifications, let alone his entitlement to compensation for the breach.
Conversely, that DRC stressed that recognizing the second contract as the only valid and
binding document between the parties was mathematically logical in that the
remuneration therein established was fairly similar to the remaining of the first contract
(i.e. 5 * USD 8,000), only with an increase of USD 5,000.
44. Having established the above, the DRC referred to the principle of venire contra factum
proprium and determined that neither of the parties could change their course of action by
requesting a higher amount (in case of the player) or paying a lower amount (in case of the
club).
45. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is only liable to pay to the Claimant the balance
of the second contract, namely USD 1,618.
46. 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 amount as from 1 June 2023 until the date of effective
payment.
47. For completeness, the DRC also rejected the player’s claim for additional compensation
based on the same reasons outlined above, as well as on the lack of any regulatory or
contractual basis in this respect.
ii. Compliance with monetary decisions
48. 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.
pg. 14
REF. FPSD-11660
49. 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.
50. 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.
51. 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.
52. 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
53. 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.
54. 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.
55. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 15
REF. FPSD-11660
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Yacouba Doumbia, is partially accepted.
2.
The Respondent, Arabi SC, must pay to the Claimant the following amount:
- USD 1,618 as outstanding remuneration plus 5% interest p.a. as from 1 June 2023 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.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, 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.
5.
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.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 16
REF. FPSD-11660
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 Governing the Football
Tribunal).
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
pg. 17