Labour Disputes
Texto da decisão
REF FPSD-428
Decision of the
Dispute Resolution Chamber
passed on 6 October 2021
regarding an employment-related dispute concerning the player Germain
Guessan Bi
BY:
Alexandra Gomez-Bruinewoud (Uruguay/the Netherlands)
CLAIMANT / COUNTER-RESPONDENT 1:
Germain Guessan Bi, Côte d'Ivoire
Represented by Mr Juan de Dios Crespo Pérez, Gytis Rackauskas & Alfonso León Lleó
RESPONDENT / COUNTER-CLAIMANT:
Étoile Sportive de Metlaoui, Tunisia
COUNTER-RESPONDENT 2:
Club Sportif Sfaxien, Tunisia
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REF FPSD-428
I.
Facts of the case
1.
The Ivorian player, Mr. Germain Guessan Bi (hereinafter: the player) and the Tunisian club CS
Sfaxien (hereinafter: CSS) signed an employment contract valid from 14 January 2019 until
30 June 2022, with the following remuneration:
a. for Season 2018/2019: Salary of Tunisian Dinars (TND) 1,000 plus fixed bonus of TND
10,000;
b. for Season 2019/2020: Salary of TND 1,500 plus fixed bonus of TND 20,000.
2.
On 23 August 2019, the player’s services were apparently loaned from CSS to the Tunisian
club, Étoile Sportive de Metlaoui (hereinafter: the club), following which the player and the
club concluded an employment contract valid as from signature until 30 June 2020
(hereinafter: the contract).
3.
The financial terms of the contract were as follows:
a. Monthly salary of TND 2,000;
b. “prime de rendement” (performance bonus ) of TND 20,000 “payable in four instalments”;
c. Performance related bonuses and various benefits in accordance with the club’s internal
regulations, as homologated at the Tunisian Football Federation (TFF).
4.
On 30 January 2020, the player sent a default notice to the club requesting payment of all
outstanding amounts plus interest until 14 February 2020. The default notice does not refer
to the specific amounts outstanding at the time.
5.
On 17 February 2020, the player granted a final warning to the club to pay all amounts due
to him until 21 February 2020, otherwise he would consider the contract as terminated with
just cause.
6.
There does not seems to be a formal termination of the contract.
7.
On 25 February 2020, the player and CSS mutually terminated their employment relationship.
II. Proceedings before FIFA
8.
On 27 November 2020, the player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the player
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9.
According to the player, he is entitled to outstanding remuneration and compensation for
breach of contract.
10. In this regard, the player alleged that, at the time the contract was terminated, the salaries of
October, November, December 2019 and January 2020 (TND 8,000) plus half of the “prime
de rendement” (TND 10,000) were outstanding.
11. The requests for relief of the player were the following:
a. Outstanding remuneration: TDN 18,000 equivalent to EUR 5,557.89;
b. Compensation for breach of contract: TDN 20,000 representing the salaries of February,
March, April, May and June 2020 (5 x TND 2,000) plus TDN 10,000 as remainder of the “prime
de rendement” equivalent to EUR 6,171.79;
c. Compensation for the specificity of sport: additional compensation of 6 months’ salary, i.e.
TND 12,000 equivalent to EUR 3,710.12;
d. 5% interest on all amounts as of the respective due dates;
e. Sanctions in accordance with art. 12bis of the FIFA Regulations on the Status and Transfer
of Players (RSTP);
f. The club shall bear all expenses and costs of the proceedings.
b. Reply and counterclaim of the club
12. The club lodged a counter-claim against the player.
13. The club explained that the player left the club without prior warning and went back to CSS
in violation of the employment contract, and that the player no longer trained nor played
with the club.
14. The club affirmed that it honoured its obligations towards the player for the months of
September, October, November, December 2019 as well as January 2020. The club added
that CSS was witness to these facts and that the player acted in bad faith and attempted to
commit a fraud.
15. As to the “prime de rendement”, the club alleged that its payment was conditioned to the
number of matches played by the player in comparison with the number of matches played
by the club and that the maximum is therefore TND 20,000.
16. According to the club, section 2(D) of Chapter I of Annex 1 to the Regulations of the Tunisian
Federation of Professional Football on salaries and bonuses specifies the method of
calculation and the methods of payment of the “prime de rendement”.
17. The club underlined that the club played 29 matches in the season and the player played in
2 of them. The player is therefore entitled to 20,000*2 / 29 = TDN 1,380.
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18. The club made the following requests for relief:
a. To oblige the player to pay the club TND 20,000 as compensation for breach of contract;
b. Alternatively, to readjust the amounts due to the player to TND 1,896 calculated as follows:
According to the contract, the player would have received a total of TND 20,526 in salaries
plus TND 1,380 as “prime de rendement”. The player received the amount of TDN 10,000 as
salaries and TDN 10,000 as “prime de rendement”. The balance is therefore TND 20,516 +
TNS 1,380 – TND 20,000 0 TDN 1,896.
c. Reply to the counterclaim
19. The player did not reply to the club’s counterclaim. Furthermore, the FIFA general secretariat
has extended the counterclaim to the player’s club with whom he registered after the
termination of the contract with the club, CSS. CSS has not replied to the club’s counterclaim
either.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
20. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single Judge) analysed whether she was competent to deal with the case at hand. In this
respect, she took note that the present matter was presented to FIFA on 27 November 2020
and submitted for decision on 6 October 2021. 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.
21. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and observed
that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations on
the Status and Transfer of Players (August 2021 edition), the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an employment-related dispute
with an international dimension between an Ivorian player and a Tunisian club, with the
involvement of another Tunisian club.
22. Subsequently, the Single Judge 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 (August 2021 edition), and
considering that the present claim was lodged on 27 November 2020, the October 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
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b. Burden of proof
23. The Single Judge 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, she stressed the wording of
art. 13 par. 4 of the Procedural Rules, pursuant to which she may consider evidence not filed
by the parties, including without limitation the evidence generated by or within the Transfer
Matching System (TMS).
c. Merits of the dispute
24. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, she started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
she emphasised that in the following considerations she will refer only to the facts, arguments
and documentary evidence, which hse considered pertinent for the assessment of the matter
at hand.
i. Main legal discussion and considerations
25. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the firs tissue which must be assessed is the matter of
the termination of the contract, in light of the fact that no formal document was made
available to this end on file.
26. To this end, the Single Judge acknowledged that the letter of 17 February 2020 served as
final warning for payment until 21 February 2020, otherwise the player would consider the
contract as terminated. Accordingly, and absent any evidence to the contrary as well as any
challenge by the club to this end, the Single Judge was comforted to determine that the
player terminated the contract on 21 February 2020, i.e. when the deadline of the final
warning expired.
27. In continuation, the Single Judge addressed the club’s allegation that the player left the club
without prior notice. The Single Judge noted that the club does not specify exactly when the
player left, nor is there any evidence that the club put the player in default to return to the
club at any point in time. Accordingly, and bearing in mind the aforementioned reasoning as
to the termination of the contract, the Single Judge dismissed the argumentation of the club.
28. Accordingly, the Single Judge turned to the amounts outstanding at the time of the
termination, since the club alleges having paid all salaries due to the player until January 2020.
The Single Judge once gain confirmed that the club did not adduce any evidence of payments.
Therefore, she concluded that the claimed salaries were indeed outstanding at the time of
the termination since the club failed to meet its burden of proof to the contrary.
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29. As to the amounts due as “prime de rendement”, the Single Judge confirmed that the
contract does not specify that their payment would be conditioned to a certain number of
matches played. Therefore, following the principles pacta sunt servanda and in claris non fit
interpretatio, the Single Judge concluded that the entire amounts of TND 20,000 was due to
the player.
30. In conclusion, the Single Judge found that at the time of termination, the salaries of October,
November, December 2019 and January 2020 as well as half of the “prime de rendement”
remained outstanding. The Single Judge was mindful that the player had put the club in
default but had not specified which amounts were outstanding. Nonetheless, considering the
substantial amounts outstanding at the time of the termination, the Single Judge recognized
that such persistent and substantial non-compliance of the contractual obligations by the club
could justify the unilateral termination of the employment contract in line with art. 14 of the
Regulations.
31. Based on the foregoing, the Single Judge concluded that the player had just cause to
terminate the employment contract and that the club shall be liable to the consequences that
follow.
ii. Consequences
32. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the club.
33. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to TND 18,000 (i.e.
TND 8,000 as salaries of October, November, December 2019 and January 2020 plus TND
10,000 as ½ “prime de rendement”).
34. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the club is liable to pay to the player the amounts which were
outstanding under the contract at the moment of the termination, i.e. TND 18,000.
35. In addition, taking into consideration the player’s request as well as the constant practice of
the Football Tribunal in this regard, the Single Judge decided to award the player interest at
the rate of 5% p.a. on the outstanding salaries as from their due dates until the date of
effective payment. Specifically on the “prime de rendement”, the Single Judge confirmed
that there was no specification of the exact due dates of the four instalments in the contract,
hence she decided to ward it as from 21 February 2021.
36. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, she 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
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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.
37. In application of the relevant provision, the Single Judge held that she first of all had to clarify
as to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Single Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
38. As a consequence, the Single Judge determined that the amount of compensation payable
by the club to the player had to be assessed in application of the other parameters set out in
art. 17 par. 1 of the Regulations. The Single Judge recalled that said provision provides for a
non-exhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
39. Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded
with the calculation of the monies payable to the player under the terms of the contract from
the date of its unilateral termination until its end date. Consequently, the Single Judge
concluded that the amount of TND 20,000 (i.e. the residual value of the contract amounting
to the salaries from February to June 2020) plus TND 10,000 as ½ “prime de rendement”)
serves as the basis for the determination of the amount of compensation for breach of
contract.
40. In continuation, the Single Judge verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
41. Indeed, the player returned to CSS to fulfil his employment contract, but only to mutually
terminate such contract four days later. Consequently, the Single Judge concluded that no
mitigation took place.
42. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Single Judge decided that the club must pay the amount of TND
20,000 to the player, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
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43. Lastly, taking into consideration the player’s request as well as the constant practice of the
Football Tribunal in this regard, the Single Judge decided to award the player interest on said
compensation at the rate of 5% p.a. as of the date of claim until the date of effective
payment.
iii. Compliance with monetary decisions
44. The Single Judge 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.
45. In this regard, the Single Judge pointed out 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.
46. Therefore, bearing in mind the above, the Single Judge decided that, in the event that the
club does not pay the amounts due to the player within 45 days as from the moment in which
the player, following the notification of the present decision, communicates the relevant bank
details to the club, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.
47. Finally, the Single Judge recalled that the above-mentioned ban will be lifted immediately and
prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis
par. 3 of the Regulations.
d. Costs
48. The Single Judge referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, the Single Judge decided that no procedural costs were
to be imposed on the parties.
49. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
50. Lastly, the Single Judge concluded the 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/Counter-Respondent 1, Germain Guessan Bi, is partially accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Étoile Sportive de Metlaoui, is
rejected.
3.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent the
following amounts:
- TND 2,000 as outstanding remuneration plus 5% interest p.a. as from 1 November 2019
until the date of effective payment;
- TND 2,000 as outstanding remuneration plus 5% interest p.a. as from 1 December 2019
until the date of effective payment;
- TND 2,000 as outstanding remuneration plus 5% interest p.a. as from 1 January 2020 until
the date of effective payment;
- TND 2,000 as outstanding remuneration plus 5% interest p.a. as from 1 February 2020
until the date of effective payment;
- TND 10,000 as outstanding remuneration plus 5% interest p.a. as from 21 February 2020
until the date of effective payment;
- TND 20,000 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 27 November 2020 until the date of effective payment.
4.
Any further claims of the Claimant/Counter-Respondent 1 are rejected.
5.
The Claimant/Counter-Respondent 1 is directed to immediately and directly inform the
Respondent/Counter-Claimant of the relevant bank account to which the latter must pay the
due amount.
6.
The Respondent/Counter-Claimant 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).
7.
In the event that the amount due, plus interest as established above is not paid by the
Respondent/Counter-Claimant within 45 days, as from the notification by the
Claimant/Counter-Respondent of the relevant bank details to the Respondent/CounterClaimant, the following consequences shall arise:
1. The Respondent/Counter-Claimant 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.
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(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.
8. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a
party within five days of the notification of the motivated decision, to publish an anonymised or a
redacted version (cf. article 17 of the Procedural Rules).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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