Labour Disputes
Texto da decisão
REF FPSD-5309
Decision of the
Dispute Resolution Chamber
passed on 21 April 2022
regarding an employment-related dispute concerning the player Jean Evrard
Kouassi
COMPOSITION:
HENDEL Clifford J. (USA/France), Deputy Chairperson
COLLINS Angela (Australia), member
MOHAMED AL-NOAIMI Dana (Qatar), member
CLAIMANT:
Jean Evrard Kouassi, Côte d'Ivoire
Represented by Romain Soiron & Alvyn Gobardhan
RESPONDENT:
Wuhan FC (recently known as Wuhan Yangtze FC), China PR
Represented by Zhaoyi Dong
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I.
Facts of the case
1.
On 16 January 2017, the Ivorian player Jean Evrard Kouassi (hereinafter: the Claimant) and
Wuhan Zall Professional FC (hereinafter: the Respondent) entered into an employment
contract (hereinafter: the Contract) valid until 31 December 2021.
2.
Art. 4.5 of the Contract reads as follows:
“[The Claimant]’s annual salary in season 2021 is 3,000,000 (Euros/net of any Chinese –which
includes Hong Kong – taxes). The salary will be paid in 12 times at a monthly basis and the
payment of monthly salary will be effected the 10th of the following month.”
3.
Art. 4.17 of the Contract reads as follows
“Any delay of payment of any monthly salary or any bonus set in this article 4 shall without
further notice incur arrears interests at the rate of 5% on the amount due for every month of
delay starting from due date.”
4.
On 25 November 2021, the Claimant sent a notice to the Respondent requesting the salaries
(with the accrued interest) for the months of July to October 2021.
5.
On 30 November 2021, the Respondent sent a notice to Claimant alleging that he had not
returned from international duty and that it was entitled to terminate the Contract due to
force majeure.
6.
On 10 December 2021, the Claimant replied to the previous correspondence contesting the
alleged absence and denying the possibility of the Respondent to terminate the Contract.
7.
On 27 January 2022, the Claimant sent a notice to the Respondent requesting the sum of
EUR 1,250,000 corresponding to the salaries of August to December 2021, to be paid by 11
February 2022.
8.
On 27 April 2022, the Respondent informed FIFA general secretariat that, in March 2022, it
had changed its name to Wuhan Yangtze FC.
II. Proceedings before FIFA
9.
On 2 March 2022, 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
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10. According to the Claimant, the Respondent failed several times to comply with the payment
schedule agreed and he had sent multiple letters warning the Respondent.
11. The Claimant filed the following requests for relief:
respectfully requests from the FIFA Dispute Resolution Chamber to be awarded with the
following amounts:
- 1.250.000 Euros corresponding to the salaries of August, September, October, November,
and December 2021 (pursuant to the Employment Contract);
- a global penalty of 187.500 € (to be updated), if the club pays all the salaries before 10
March 2022, corresponding to the 5% p.a interests applicable pursuant to Article 4.17 of the
Employment Contract, to the salaries of:
o August (12.500 € x 5 months of delay starting 10 September 2021),
o September (12.500 € x 4 months of delay starting 10 October 2021),
o October (12.500 € x 3 months of delay starting 10 November 2021),
o November (12.500 € x 2 months of delay starting 10 December 2021), and
o December (12.500 € x 1 month of delay starting 10 January 2022);
- 5.000 Euros corresponding to the legal fees incurred by him regards to the procedure
hereto.
b. Position of the Respondent
12. The Respondent replied to the claim on the following terms.
13. The Respondent submits that “Owing to the financial burden caused by the COVID-19
pandemic, which should be considered as force majeure, the Club hasn’t paid the salary on
time. Therefore, the Club shall be exempted from the corresponding responsibilities and
obligations”.
14. The Respondent further submits that “Since the Contract stipulates that Chinese law is
applicable, Article 180 and Article 566 of the Civil Code of the People’s Republic of China
should be referred to. Accordingly, “force majeure” means objective conditions which are
unforeseeable, unavoidable, and insurmountable and where a party is unable to perform the
contract due to force majeure, it shall be exempted from liability in whole or in part”.
15. The Respondent deems that it did not breach the contract deliberately or maliciously and
always acted “in a perfect manner” towards the Claimant.
16. The Respondent argues that the Claimant “left the Club on August 16th 2021, ignored the
Club’s request for his return, and rejected the settlement kindly offered by the Club”.
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17. The Respondent further argues that “It is definitely unacceptable for the Club that the Player
neither returned to fulfil his contractual obligations nor agreed to terminate the Contract
earlier, but to blindly request the remuneration for the last two months of 2021”.
18. Lastly, the Respondent refers to Art. 4.17 of the Contract and states that “the clause
stipulating the penalty of 5% monthly appears to be a hidden interest clause corresponding
to a yearly interest rate of 60%” and the interest rates in the present case should be 5% p.a.
in accordance with the jurisprudence of the DRC.
19. The Respondent filed the following requests for relief:
1. To dismiss the 1st request, or deduct the amount of 1st request to 750,000 EUR;
2. To dismiss the 2nd request, or deduct the amount of penalty by two months and adjust
the interest rate of penalty to 5% p.a.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
20. 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 2 March 2022 and submitted for decision
on 21 April 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.
21. Subsequently, 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 lit. b) of the
Regulations on the Status and Transfer of Players (March 2022 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 Chinese club.
22. 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 (March 2022 edition) and
considering that the present claim was lodged on 2 March 2022, 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
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23. 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.
c. Merits of the dispute
24. 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.
i. Main legal discussion and considerations
25. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute the payment of certain financial
obligations by the Respondent as per the contract, namely the last five monthly salaries as
per the Contract.
26. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained unpaid
by the Respondent and, if so, whether the latter had a valid justification for not having
complied with its financial obligations.
27. The Chamber first noted that in the case at hand the Respondent bore the burden of proving
that it indeed complied with the financial terms of the contract concluded between the
parties. Nonetheless, the Chamber noted that the Respondent did not dispute the nonpayments of the amounts. Although it put forward arguments aiming to justify its noncompliance with the terms of the Contract.
28. Furthermore, the Chamber observed that no reasonable justification was presented by the
Respondent for not having complied with the terms of the contract.
29. In particular, the Chamber noted that the Respondent alleged that the Claimant was absent
for the last two months of the Contract. However, the Respondent had not provided
consistent supporting evidence that the Claimant was absent without justification, without
permission and/or requested to return.
30. As to the allegation of force majeure as the reason for non-payment, the Chamber noted
that the Respondent requested the application of Chinese law. As a result, the Chamber
concluded that no situation of force majeure could be established and that the COVID-19
outbreak shall not be used as an excuse not to comply with contractually agreed payments.
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31. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda,
which in essence means that agreements must be respected by the parties in good faith, the
Respondent is held liable to pay the Claimant the outstanding amounts deriving from the
contract concluded between the parties, namely the salaries from August to December 2021,
in the total amount of EUR 1,250,000.
32. Having established the above, the Chamber moved to the remarked that in clause 4.17 of
the Contract, the Claimant and Respondent agreed a penalty in the event of default amount
of 5% per month.
33. In this context, the Chamber observed that on a yearly basis the said interest would
correspond to an interest rate of 60%. Said percentage is to be considered clearly
disproportionate and excessive.
34. In view of the foregoing, the Chamber considered that the interest rate provided for in clause
4.17 of the Contract was disproportionate and unreasonable and should be reduced to the
maximum interest allowed under Swiss law, i.e., 18% per annum.
35. Thus, taking into consideration the aforementioned, the Chamber decided to award the
Claimant interest at the rate of 18% p.a. on the outstanding amounts as from the respective
due dates until the date of effective payment.
ii. Compliance with monetary decisions
36. 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.
37. 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.
38. 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.
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39. 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.
40. 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
41. 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.
42. 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.
43. Lastly, the DRC concluded its 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, Jean Evrard Kouassi, is partially accepted.
2.
The Respondent, Wuhan FC, has to pay to the Claimant, the following amount(s):
- EUR 1,250,000 as outstanding remuneration plus 18% interest p.a. as follows:
On EUR 250,000 as from 10 September 2021 until the date of effective payment;
On EUR 250,000 as from 10 October 2021 until the date of effective payment;
On EUR 250,000 as from 10 November 2021 until the date of effective payment;
On EUR 250,000 as from 10 December 2021 until the date of effective payment;
On EUR 250,000 as from 10 January 2022 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.
5.
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.
2.
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.
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.
6.
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.
7.
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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