Dispute Resolution Chamber
Texto da decisão
REF FPSD-146
Decision of the
DRC Judge
passed on 7 April 2021
regarding an employment-related dispute concerning the player Marc Ghislain KIBONG
MBAMBA
BY:
Jon Newman (USA), DRC Judge
CLAIMANT:
Marc Ghislain KIBONG MBAMBA, Cameroon
Represented by Mr Enes Bahadir Baskoy
RESPONDENT:
FC Denizlispor Kulübü, Turkey
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REF FPSD-146
I.
FACTS OF THE CASE
1.
On 6 July 2018, the player Marc Ghislain Kibong Mbamba (hereinafter: “the Claimant” or “the
player”) and the club Denizlispor Kulübü (hereinafter: “the Respondent” or “the club”)
concluded an employment contract (hereinafter: “the contract”), valid until 31 May 2020.
2.
Point 3.1) A) of the contract provides that the club will pay the player for the season 2018/2019
for a total amount of EUR 238,000 as follows:
Advance payment: EUR 63,000
EUR 10,000 on 6 July 2018;
EUR 40,000 on 11 July 2018 and
EUR 13,000 on 15 October 2018.
Wage payments:
EUR 175,000 payable in 10 instalments of EUR 17,500 each from 31 May 2018 until 31
August 2019.
3.
Point 3.2) A) of the contract provides that the club will pay the player for the season 2019/2020
a total amount of EUR 300,000, as follows:
Advance payment:
EUR 50,000 on 31 July 2019;
Wage payments:
EUR 250,000 payable in 10 instalments of EUR 25,000 each from 31 August 2019 until
31 May 2020.
4.
Point 9 of the contract provides: “The disputes emanating from this Agreement are subject to
the laws of the Republic of Turkey and Rules & Instructions of the TFF shall have the priority of
implementation. The authority to solve disputes that result from this agreement exclusively
belong to the TFF Dispute Resolution Board. The parties may appeal against the decision of the
Dispute Resolution Board only before the TFF Arbitration Committee within due time”.
5.
Point 13 of the contract provides: “The footballer hereby accepts and undertakes to comply
with all instructions, resolutions and regulations of the FIFA, the UEFA and the TFF”.
6.
By means of his correspondence dated 24 June 2019, the player put the club in default of
payment in the amount of EUR 148,000, corresponding to outstanding remuneration (i.e. six
monthly salaries, advance payment and championship bonus cf. the contract), and granted the
Respondent a 15 days’ deadline (cf. art. 14bis of the Regulations) to remedy the default; however
to no avail.
7.
On 18 July 2019, the parties signed a protocol (hereinafter: “the protocol”) by means of which
they regulate their employment relationship in order to settle the present matter amicably.
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REF FPSD-146
8.
Point 2.4 of the protocol provides that the club will pay the player the total net amount of EUR
132,150 “without enforcing the article 1 of Special Provisions of the contract concerning the
fixed exchange rate”. The aforementioned amount shall be paid as follows:
1) EUR 63,000 on 17 July 2019;
2) EUR 3,000 on 5 August 2019;
3) EUR 36,150 on 15 August 2019;
4) EUR 30,000 on 31 August 2019.
9.
Point 3.1 of the protocol states: “The provisions contained in this protocol have been agreed
upon by the mutual wills of the parties hereto. In case of any discrepancy between the
Professional Football Player Agreement [i.e. the contract] and this Protocol, then the provisions
of the Protocol shall prevail”.
10.
Point 3.2 of the protocol states: “In case of any dispute, the respective bodies of FIFA shall be
competent. The substantive law that shall apply in case of dispute shall be determined by the
respective bodies of FIFA within the framework of the FIFA instructions”.
11.
In his request for relief, the player requested to condemn the club to pay the total amount of
EUR 141,150 as outstanding remuneration plus an 5% interest p.a. as from the respective due
dates until the date of effective payment. Said claimed amount is breakdown as follows:
1) EUR 36,150 due on 15 August 2019 (cf. point 2.4 of the protocol) related to the season
2018/2019;
2) EUR 30,000 due on 31 August 2019 (cf. point 2.4 of the protocol) related to the season
2018/2019;
3) EUR 25,000 as monthly salary related to March 2020 (cf. Point 3.2) A) of the contract);
4) EUR 25,000 as monthly salary related to April 2020 (cf. Point 3.2) A) of the contract);
5) EUR 25,000 as monthly salary related to May 2020 (cf. Point 3.2) A) of the contract).
12.
The Claimant also requested, in case of failure, the imposition of sporting sanctions to the club
in accordance with art. 24bis of the regulations.
13.
The Claimant presented an additional position stating: “As Denizlispor also made mixed
payments in a chaotic manner with Turkish explanations, it is almost impossible for the player to
determine which salaries have not been paid yet. In this regard, as we mentioned before, we
kindly request the DRC Judge to order that total of 139.500 Euros should be paid by the
respondent. The amount was confirmed by the club. The due dates of unpaid salaries should be
determined by the DRC Judge ex officio”.
14.
Moreover, the Claimant rejected the pandemic discount of 10% (EUR 30,000) which was
imposed by the club unilaterally. “The player never accepted the unilateral reduction made by
the club. There is no agreement between the club and the player for a discount. The club
has never made a negotiation with the player about it. The club has not followed the “Covid-19
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REF FPSD-146
Football Regulatory Issues”. Moreover, the Turkish Super League which Denizlispor
competed in last season were completed. The league was not cancelled by the Turkish Football
Federation. Although the contract of the player has ended on 31 May 2020, the player continued
with the club until the season is completed. In other words, the player stayed with
Denizlispor 2 more months after his contract was done and without asking for extra salary from
Denizlispor”.
15.
The Respondent confirmed owing to the player EUR 139,500 as outstanding remuneration
instead of EUR 141,150. The due dates of the unpaid receivables should be determined as
follows:
1) EUR 34,500 on 15 August 2019;
2) EUR 30,000 on 31 August 2019;
3) EUR 25,000 on 31 March 2020;
4) EUR 25,000 on 30 April 2020;
5) EUR 25,000 on 31 May 2020.
16.
Furthermore, the Respondent argued having suffered damages from the Covid-19 pandemic.
17.
In this respect, the Respondent presented a financial report prepared by an independent
accountant showing the loss of income of the club. According to the report, the club lost an
amount of Turkish Lira (TRL) 13,647,296.22 because of the Covid-19 pandemic, i.e. a loss of
10.89 % from the expected total income. When the season 2019/2020 ended, the club
requested the calculation of the loss of income.
18.
In view of the conclusions of the report, the Respondent requested the players, including the
Claimant, a reduction of their salaries of 10%. The Respondent enclosed an email sent on 22
August 2020 to the Claimant (via his legal representative) demanding the latter to make a
discount from his accrued receivables for the 2019/2020 season at a rate to be determined jointly
by the parties and waive such amount of his receivables. “The Respondent stated in said letter
that first they would like to resolve this issue by mutual agreement reserving their right to file a
lawsuit for the adaptation of the contract within the scope of article 138 of the Turkish Code of
Obligations”. Some of the players agreed with the reduction.
19.
The Respondent alleged that since the player did not give a response related to the reduction
request. The Respondent made a unilateral decision on 29 September 2020 and decided to make
a reduction of 10% from the receivables of the player.
20.
Therefore, the Respondent requested the DRC to order the Claimant a reduction of his requests
of 10% “from all the receivables of the player for 2019/2020 season”. This discount should be
equivalent to EUR 30,000, i.e. EUR 109,500 (EUR 139,500 – EUR 30,000).
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REF FPSD-146
II.
CONSIDERATIONS OF THE DRC JUDGE
1.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: “the DRC judge”) analyzed
whether he was competent to deal with the case at hand. In this respect, he took note that the
present matter was submitted to FIFA on 2 September 2020. Taking into account the wording
of art. 21 of the 2021 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: “the Procedural Rules”), the 2020
edition of the Procedural Rules is applicable to the matter at hand.
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of
the Regulations on the Status and Transfer of Players (edition February 2021) he is competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Cameroonian player and a Turkish club.
3.
Furthermore, the DRC judge analysed which regulations should be applicable as to the substance
of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of
the Regulations on the Status and Transfer of Players (edition February 2021), and considering
that the present claim was lodged on 2 September 2020, the August 2020 edition of said
regulations (hereinafter: “the Regulations”) is applicable to the matter at hand as to the
substance.
4.
The competence of the DRC judge and the applicable regulations having been established, the
DRC judge entered into the substance of the matter. Subsequently, the DRC judge continued by
acknowledging the above-mentioned facts as well as the documentation contained in the file in
relation to the substance of the matter. However, the DRC judge emphasized 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.
5.
To start with, the DRC judge acknowledged that the parties to the dispute had signed the
contract valid from 6 July 2018 until 31 May 2020 and that one year later, on 18 July 2019 they
signed the protocol.
6.
The DRC judge took note that the Claimant confirmed that the Respondent owes him
outstanding remuneration for an amount of EUR 139,500 based on the contract and the
protocol.
7.
On the other hand, the DRC judge remarked that the Respondent acknowledged owing the
amount of EUR 139,500 to the Claimant however, it requested a reduction of EUR 30,000 based
on the loss of income suffered by the club due to the COVID-19 pandemic.
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REF FPSD-146
8.
Therefore, the DRC judge underlined that it is uncontested by the parties that the Respondent
owes the amount of EUR 139,500 as outstanding remuneration to the Claimant.
9.
With regard to the request of the Respondent to reduce the outstanding amount to EUR
109,500, the DRC judge held that in line with the well-established jurisprudence of the
Dispute Resolution Chamber, financial difficulties cannot be considered a valid justification
for non-compliance by a club with its essential contractual obligations that is to pay in a
timely manner.
10.
In particular, with regard to the alleged effects of the COVID-19 pandemic invoked by
the Respondent, the DRC judge highlighted that some of the remuneration requested by the
Claimant, i.e. related to the months of August 2019 and March 2020 were due before the
effects of the COVID-19 pandemic started.
11.
Therefore, the DRC judge held that the unilateral reduction made by the club could not apply to
the salaries of August 2019 and March 2020 and as a result, the Respondent should pay to the
Claimant the amount of EUR 89,500.
12.
With regard to the remuneration related to the months of April and May 2020, the DRC judge
observed that it appears that the Respondent sent an email on 22 August 2020 to the player´s
legal representative proposing the reduction of the Claimant´s remuneration and that finally on
29 September 2020, the Respondent decided unilaterally its variation.
13.
In light of the above, the DRC judge remarked that on 29 September 2020, i.e. 4 months after
the expiry of the contract, the Respondent unilaterally decided to reduce the Claimant´s
remuneration.
14.
In this respect, the DRC judge underlined that, as a general rule, unilateral variation of player´s
remuneration cannot apply retroactively.
15.
Consequently, the DRC judge was of the opinion that the principle of non-retroactivity should
be applied as of the date of the unilateral decision (i.e. 29 September 2020) to reduce the player´s
salaries made by the club.
16.
Therefore, the DRC judge held that the salaries of April and May 2020 cannot be subject to a
possible reduction and hence the Respondent should pay them in full to the Claimant, i.e. EUR
50,000.
17.
In conclusion, the DRC judge pointed out that, as confirmed by the Claimant and the
Respondent, the following remuneration was outstanding:
1) EUR 34,500 due on 15 August 2019;
2) EUR 30,000 due on 31 August 2019;
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3) EUR 25,000 due on 31 March 2020;
4) EUR 25,000 due on 30 April 2020 and
5) EUR 25,000 due on 31 May 2020.
18.
On account of the aforementioned considerations, the DRC judge decided that, in accordance
with the general legal principle of pacta sunt servanda, the club is liable to pay to the player
outstanding remuneration in the total amount of EUR 139,500.
19.
In addition, taking into consideration the request of the player and the standard practice, the
DRC judge decided to award the Claimant interest at the rate of 5% p.a. on the aforementioned
amounts as from the relevant due dates (i.e. day after the relevant due date) until the date of
effective payment.
20.
Furthermore, taking into account the consideration under point II./3. above, the DRC 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.
21.
In this regard, the DRC 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.
22.
Therefore, bearing in mind the above, the DRC judge decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from the moment
in which the Claimant, following the notification of the present decision, communicates the
relevant bank details to the Respondent, a ban from registering any new players, either nationally
or internationally, for the maximum duration of three entire and consecutive registration periods
shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the
Regulations.
23.
Finally, the DRC 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.
III. DECISION OF THE DRC JUDGE
1.
The claim of the Claimant, Marc Ghislain KIBONG MBAMBA, is accepted.
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2.
The Respondent, FC Denizlispor Kulübü, has to pay to the Claimant, the amount of EUR 139,500
as outstanding remuneration plus a 5% interest p.a. as follows:
- on the amount of EUR 34,500 as from 16 August 2019 until the date of effective payment;
- on the amount of EUR 30,000 as from 1 September 2019 until the date of effective payment;
- on the amount of EUR 25,000 as from 1 April 2020 until the date of effective payment;
- on the amount of EUR 25,000 as from 1 May 2020 until the date of effective payment;
- on the amount of EUR 25,000 as from 1 June 2020 until the date of effective payment.
3.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
4.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA
languages (English, French, German, Spanish).
5.
In the event that the amount due, plus interest as established above is not paid by the
Respondent within 45 days, as from the notification by the Claimant of the relevant bank
details to the Respondent, the following consequences shall arise:
6.
1.
The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
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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