Labour Disputes
Texto da decisão
REF FPSD-4856
Decision of the
Dispute Resolution Chamber
passed on 21 April 2022
regarding an employment-related dispute concerning the player Thievy Guivane Bipfouma
Koulossa
BY:
Clifford J. Hendel (USA/France), Deputy Chairperson
Angela Collins (Australia), member
Dana Mohamed Al-Noaimi (Qatar), member
CLAIMANT:
Thievy Guivane Bipfouma Koulossa, Belgium
Represented by Batinde Josee
RESPONDENT:
Shenzhen FC, China PR
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I.
Facts of the case
1.
On 15 October 2021, the Belgian player, Thievy Guivane Bipfouma Koulossa (hereinafter: “the player”
or “the Claimant”) and the Chinese club, Shenzhen FC (hereinafter: “the club” or “the Respondent”)
concluded a settlement agreement (hereinafter: “the agreement”) that emerged from the
employment contract (hereinafter: “the contract”) signed on 01 July 2020 and valid from that date
until 30 June 2023.
2.
Premise VII of the agreement stated that both parties intended to settle all the matters corresponding
to the contractual relationship between them.
3.
Article 1 of the agreement stated that the player was entitled to receive from the club the total
amount of EUR 3,500,000 net (hereinafter: “the settlement amount”) and that the player should
transfer to the club the full subsidies of 2020 and 2021 which totalized RMB 1,350,000 and RMB
5,000,000, respectively, but only if the club completed all the payments due to him.
4.
Article 2 of the agreement stated that the settlement amount should be paid by the club in seven
instalments as follows:
EUR 700,000 to be paid within 31 October 2021;
EUR 350,000 to be paid within 30 November 2021;
EUR 420,000 to be paid within 31 January 2022;
EUR 420,000 to be paid within 28 February 2022;
EUR 420,000 to be paid within 31 March 2022;
EUR 420,000 to be paid within 30 April 2022;
EUR 420,000 to be paid within 31 May 2022;
EUR 350,000 to be paid within 30 June 2022.
5.
Article 3 of the agreement stated that if the club failed to pay any of the instalments within the
mentioned deadlines in article 2 and after the player sent a notice granting 10 days to remedy the
club´s default, the club should pay the remaining amounts due to the player plus an interest of a 10%
p.a. from the date of failure until the day of the effective payment with a supplementary fix penalty
of EUR 50,000.
6.
Article 15 of the agreement stated that any notice given under this agreement, should be done in
writing and signed by or on behalf of the party that gives it and shall be served by delivering it the
addresses provided in the agreement by registered letter with acknowledgement of receipt or email.
7.
Article 18 of the agreement stated that the settlement should be governed by and construed in
accordance with the FIFA regulations.
8.
On 8 November 2021, the player sent a default notice to the club requesting the payment of the first
instalment of the agreement, which amounts to EUR 700,000, granting 10 days to the club to remedy
its default.
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9.
In the default notice, the player reminded the club that as it was established in article 3 of the
agreement, in case the club would not pay the requested amount within the deadline given, the club
should pay the total settlement amount plus an interest of 10% p.a. from the date of failure until the
day of the effective payment with a supplementary fix penalty of EUR 50,000.
10. The club did not respond to the default notice.
II. Proceedings before FIFA
11. On 3 December 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
12. The FIFA general secretariat sent a proposal to the parties in accordance with art. 20 of the
Procedural Rules Governing the Football Tribunal.
a. Position of the Claimant
13. According to the Claimant, the Respondent did not honour its obligations in accordance with the
agreement.
14. The requests for relief of the Claimant, were the following:
• EUR 3,500,000 net as settlement amount plus 10% interest per annum as from 01 November
2021 until the date of effective payment;
• EUR 50,000 as contractual penalty and
EUR 10,000 to cover the costs of his lawyers and the procedure.
b. Position of the Respondent
15. In its reply to the claim, the Respondent rejected the proposal from the FIFA general secretariat as
they considered the club should not pay that amount to the player.
16. In addition, the Respondent stated that the penalty clause of EUR 50,000 should not apply since a
10% interest per annum on the due amounts already applied until the effective payment. The club
argued that applying a double penalty to them would be disproportionate and abusive.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. 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 3 December 2021 and submitted for decision on 21 April 2022.
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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.
18. Subsequently, the members of the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. b) 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 employmentrelated dispute with an international dimension between a Belgian player and a Chinese club.
19. 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 03 December 2021, 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
20. 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 Transfer Matching System (TMS).
c. Merits of the dispute
21. 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 abovementioned 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
22. The foregoing having been established, the Chamber moved to the substance of the matter, and
took note of the fact that it remains uncontested that on 15 October 2021, both parties concluded
the agreement, according to which the Respondent undertook to pay to the Claimant the settlement
amount amounting to EUR 3,500,000 in seven instalments.
23. The Chamber recalled that on 3 December 2021, the Claimant lodged the present claim against the
Respondent maintaining that the latter has overdue payables towards him in the total amount of EUR
3,500,000 corresponding to the seven instalments established in article 2 of the agreement (i.e. the
settlement amount).
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24. In this context, the Chamber took note that article 3 of the agreement included an acceleration clause
stating that if the club would fail to pay to the player any of the instalments within the given deadlines
and having the player put the club in default granting 10 additional days, the rest of the instalments
would become due by the club.
25. The DRC further observed, that the Claimant asked to be awarded 10 % as default interest (cf. article
3 of the agreement) from the date of failure (i.e. lack of payment of the first instalment) until the date
of effective payment.
26. Moreover, the Chamber acknowledged that the Claimant requested the imposition of a penalty
amounting to EUR 50,000 as established in article 3 of the agreement.
27. On the other hand, the DRC noted that the Respondent disputed the payment of the penalty of EUR
50,000 arguing that said penalty should not apply since a special interest of 10% p.a. on the due
amounts already applied. The DRC observed that the club held that the potential application of the
penalty together with the specific interest would result in a double penalty disproportionate and
abusive.
28. Subsequently, the Chamber took particular note of the fact that, on 8 November 2021, the Claimant
put the Respondent in default of payment of the first instalment, which was originally due on 31
October 2021, setting a time limit of 10 days in order to remedy the default.
29. Consequently, the Chamber pointed out that the requirements established in article 3 of the
agreement were fulfilled by the Claimant and as a result the acceleration clause was triggered turning
the whole settlement amount due by the Respondent.
30. At this stage, the DRC pointed out that the Respondent did not contest owing the settlement amount
to the Claimant but only rejected the application of the penalty.
31. Consequently, in accordance with the general legal principle of pacta sunt servanda, the Chamber
decided that the Respondent is liable to pay to the Claimant the amount of EUR 3,500,000 as
settlement amount.
ii. Consequences
32. Having stated the above, the members of the Chamber turned their attention to the question of the
consequences of such unjustified breach of agreement committed by the Respondent.
33. Consequently, and in accordance with the general legal principle of pacta sunt servanda, the DRC
reiterated that the Respondent is liable to pay to the Claimant the settlement amount deriving from
the agreement concluded between the parties, i.e. EUR 3,500,000.
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34. In continuation, the Chamber focussed his attention to the Claimant´s request for an annual interest
at a rate of 10% on the settlement amount based on article 3 of the agreement.
35. In this regard, the Chamber held that taking into consideration the Claimant´s request as well as the
constant practice of the Dispute Resolution Chamber, a default interest of 10% p.a. is considered
reasonable.
36. Moreover, the DRC took note that the Claimant´s requested a penalty amounting to EUR 50,000 in
accordance with article 3 of the agreement.
37. At this stage, the Chamber took note of the Respondent´s argument that the special interest should
not apply together with a penalty; otherwise, it would imply a double penalty disproportionate and
abusive.
38. The DRC focused its attention to article 3 of the agreement and concluded that its wording reflects
clearly the will of the parties, on the one hand, to compensate the Claimant with a special interest for
potential delays in receiving the settlement amount and on the other hand, to sanction the
Respondent with a penalty for a potential breach of the agreement.
39. As a result, the Chamber pointed out that the aforementioned Respondent´s argument should be
rejected.
40. In continuation, the DRC analysed if the penalty amounting to EUR 50,000 was reasonable. In this
respect, the Chamber held that indeed it is reasonable since it represents 1.43% of the settlement
amount.
41. In light of all the above, the Chamber decided to award the player an annual interest of 10% on the
settlement amount of EUR 3,500,000 from 1 November 2021 (i.e. day after the due date of the first
instalment) until the date of effective payment.
42. In addition, the Chamber decided to award the player a penalty amounting to EUR 50,000.
iii. Compliance with monetary decisions
43. 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.
44. 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.
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45. 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.
46. 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.
47. 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
48. 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.
49. 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.
50. In light of the above, the DRC decided that the Claimant´s request for EUR 10,000 to cover legal and
procedural costs should be rejected.
51. 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, Thievy Guivane Bipfouma Koulossa , is partially accepted.
2.
The Respondent, Shenzhen FC, has to pay to the Claimant, the following amounts:
- EUR 3,500,000 as outstanding remuneration plus 10% interest p.a. as from 1 November 2021
until the date of effective payment;
- EUR 50,000 as penalty.
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.
The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration the ban shall be of
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.
6. The consequences shall only be enforced at the request of the Claimant in accordance with article 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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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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