Labour Disputes
Texto da decisão
REF. FPSD-12244
Decision of the
Dispute Resolution Chamber
passed on 6 December 2023
regarding an employment-related dispute concerning
the player Tchetche Hermann Brice Kipre
BY:
Calum Beattie (Scotland), Single Judge
CLAIMANT:
Tchetche Hermann Brice Kipre, Ivory Coast
Represented by Sport Makers
RESPONDENT:
Kedah Darul Aman Football Club, Malaysia
pg. 2
REF. FPSD-12244
I. Facts of the case
1.
On 8 October 2019, the Ivorian player Tchetche Hermann Brice Kipre (hereinafter: the
Claimant or the Player) and the Malaysian club Kedah Darul Aman FC (hereinafter: the
Respondent or the Club) concluded an employment contract (hereinafter: the Contract) valid
as from 1 December 2019 until 30 November 2020.
2.
In accordance with the Schedule A of the Contract, the Respondent undertook to pay the
Claimant a monthly salary of USD 25,000 net, due by the 7th day of each following month.
3.
Furthermore, under art. 3 of the Contract, the Claimant and the Respondent (hereinafter
jointly referred to as: the parties) established the following:
“3.1 The Club shall contribute to the Employees Provident Fund (EPF) based on the EPF
Act that is currently in force for the Player except for Player whose country of domicile
is outside Malaysia (foreign player) and elected not to contribute.
3.2 The Club shall contribute to the Employees Social Contribution based on
Employees Social Security Act currently in force for the local Player.
3.3 The club must create a schedule salary deduction from the player’s gross salary
for the purpose to pay the Player income tax to the Inland Revenue board.
3.4 The Club on a monthly basis as agreed between the Club and the Player in
accordance with Schedule A shall pay the Player salary on specified date.”
4.
Finally, pursuant to art. 10 of the Contract, the parties agreed on the optional extension of
the employment relationship up to a duration of maximum 5 years, provided that the
Respondent would notify the Claimant of an offer to extend the Contract at least three
months prior to its original expiration.
5.
Consequently, on an unspecified date, the parties opted to extend the Contract for a
further year, i.e., until 30 November 2021.
6.
By correspondence dated 22 May 2023, the Malaysian Tax Authority informed the Claimant
and his current new club, KLFC, that a total of MYR 197,780 remained unpaid as unremitted
tax by the Claimant in connection with his former employment relationship with the
Respondent during the year 2020.
pg. 3
REF. FPSD-12244
II. Proceedings before FIFA
7.
On 16 October 2023, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
8.
According to the Claimant, the Respondent failed to pay the last two salaries due under the
Contract, namely those related to the months of October and November 2021.
9.
Furthermore, the Claimant held that the Respondent also failed to pay the relevant taxes
related to the Claimant’s income in relation to the fiscal year 2020, for a total of MYR
197,780.
10. In this respect, the Claimant sustained that although the Malaysian Tax Authority had
requested said amount to be remitted directly by him, the wording of the Contract was
clear in establishing the net value of the Claimant’s remuneration and the consequent
Respondent’s duty “to pay the Player Income Tax to the to the Inland Revenue board”.
11. Accordingly, in the Claimant’s view, as the Respondent failed to comply with the above
financial obligation, it shall now provide the Claimant with the needed financial resources
in order to cover the relevant remittance to the Malaysian Tax Authority.
12. The requests for relief of the Claimant were therefore the following:
“To condemn the Respondent to pay the Claimant the following amounts:
o USD 25,000 + 5% p.a. as of 07 November 2021
o USD 25,000 + 5% p.a. as of 30 November 2021
o MYR 197,780.33 + 5% p.a. as of 31 December 2021”.
b. Position of the Respondent
13. Despite being invited to do so, the Respondent did not reply to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the Single Judge) analysed whether he was competent to deal with the case at hand.
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REF. FPSD-12244
In this respect, it took note that the present matter was presented to FIFA on 16 October
2023 and submitted for decision on 6 December 2023. 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.
15. 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 (May 2023 edition), the Single Judge of
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 Malaysian club.
16. Subsequently, the Single 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 2 of the Regulations on the Status and Transfer of Players (May 2023 edition), and
considering that the present claim was lodged on 16 October 2023, the aforementioned
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
17. 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, the Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
18. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments, and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
19. The Single Judge moved to the substance of the matter, and took note of the fact that, in
addition to the demand for outstanding salaries, the Claimant holds the Respondent’s
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REF. FPSD-12244
liable for having not complied with its financial obligations towards the Malaysian Tax
Authority.
20. In particular, the Single Judge recalled that the Claimant asserted his right to be fully
covered by the Respondent with regard to his taxable incomes in relation to the fiscal year
2020, namely on the basis of art. 3 of the Contract, and for amounts that were ought to be
remitted before the end of 2021.
21. In this this respect, the Single Judge noted that the Respondent failed to present its
response to the claim of the Claimant, in spite of having been invited to do so. By not
presenting its position to the claim, the Single Judge was of the opinion that the Respondent
renounced its right of defence and, thus, accepted the allegations of the Claimant. As such,
the Single Judge confirmed that per art. 21 of the Procedural Rules, he shall make a
determination on the basis of the arguments and documentation filed by the Claimant.
22. Accordingly, the Single Judge acknowledged that his task was to determine, based on the
evidence presented by the Claimant, which of the claimed amounts had in fact remained
unpaid by the Respondent, if any.
23. In this context, the Single Judge reverted to the content of the Contract binding the
Respondent regarding its financial liabilities towards the Claimant as the latter’s former
employer, and observed that according to Schedule A, the Respondent undertook to pay a
monthly salary of USD 25,000 net. In this regard, the Single Judge observed that it remained
uncontested that the Respondent failed to pay the Claimant’ salary related to the months
of October and November 2021, for a total of USD 50,000.
24. In continuation, the Single Judge focused his attention on the wording of the aforementioned art. 3 of the Contract, which states “(…) 3.1 The Club shall contribute to the
Employees Provident Fund (EPF) based on the EPF Act that is currently in force for the Player
except for Player whose country of domicile is outside Malaysia (foreign player) and elected not
to contribute. (…) The Club shall contribute to the Employees Social Contribution based on
Employees Social Security Act currently in force for the local Player. (…) The club must create a
schedule salary deduction from the player’s gross salary for the purpose to pay the Player
income tax to the Inland Revenue board” (emphasis added by the Single Judge).
25. With the above wording in mind, the Single Judge held that it results clear the Respondent’s
liability with regard to the spectre of sums taxable, regardless of the different source of
income and regardless of the addressee of the payment note emitted by the competent
tax authority (in claris non fit interpretatio).
26. In facts, in the Single Judge’s view, the Contract would leave no alternative interpretation
but to deem the Respondent now responsible for paying the aforementioned sums to the
same Claimant, as it appears evident that it did not previously pay the questioned sums to
the Malaysian Tax Authority.
pg. 6
REF. FPSD-12244
27. Therefore, in the Single Judge’s view, the sole consequence of having said payment note
been addressed by the Malaysian Tax Authority directly to the Claimant would be that the
Respondent should have and (now) shall pay instead the relevant amounts to the Claimant
itself, in strict compliance with the Contract, which also expressly referred to the Claimant’s
remuneration as net.
28. In this respect, the Single Judge wished to remark that any different conclusion would result
detrimental to the Player’s financial entitlements as the latter is the sole responsible to
realize the payment to the relevant tax authority.
29. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant the amounts
outstanding under the Contract, i.e., USD 50,000 and MYR 197,780.33.
30. In addition, taking into consideration the Claimant’s request as well as his constant practice
in this regard, the Single Judge decided to award the Claimant interest at the rate of 5% p.a.
on the outstanding amounts as from the respective due dates until the date of effective
payment.
ii. Compliance with monetary decisions
31. Finally, taking into account the applicable Regulations, the Single Judge 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.
32. In this regard, the Single Judge 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.
33. Therefore, bearing in mind the above, the Single Judge 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.
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REF. FPSD-12244
34. 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.
35. 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. 24 par.
8 of the Regulations.
d. Costs
36. 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.
37. 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.
38. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 8
REF. FPSD-12244
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Tchetche Hermann Brice Kipre, is accepted.
2.
The Respondent, Kedah Darul Aman Football Club, must pay to the Claimant the following
amount(s):
USD 25,000 net as outstanding remuneration plus 5% interest p.a. as from 7
November 2023 until the date of effective payment;
USD 25,000 net as outstanding remuneration plus 5% interest p.a. as from 30
November 2023 until the date of effective payment;
MYR 197,780.33 net as outstanding amount plus 5% interest p.a. as from 31
December 2023 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
4.
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.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 9
REF. FPSD-12244
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
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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