Dispute Resolution Chamber
Texto da decisão
REF 21-00041
Decision of the
Dispute Resolution Chamber
passed on 06 May 2021
regarding an employment-related dispute concerning the player Cedric Gogoua
Kouname
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Angela Collins (Australia), member
Stefano La Porta (Italy), member
CLAIMANT:
FC Partizan, Serbia
Represented by Zoran Damjanovic
RESPONDENT:
Cedric Gogoua Kouname, Côte d'Ivoire
Represented by Giampaolo Monteneri & Anna Smirnova
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I.
FACTS OF THE CASE
1.
On 19 November 2020, the Serbian club, FC Partizan (hereinafter: Claimant), and the Ivorian
player, Cedric Gogoua Kouname (hereinafter: Respondent) signed a settlement agreement
(hereinafter: the Agreement) in order to put an end to the legal dispute between them.
2.
Clause 3 of the Agreement reads as follows:
“The Parties acknowledge and agree that the Player's financial obligation towards the Club
pursuant to the DRC decision, later confirmed by CAS Award, amounts to the EUR 332,127.97
on the day of the conclusion of this Settlement Agreement. Furthermore, the Parties agree to
fully and finally settle their mutual obligations arising out from terminated employment contract
through the Player's payment to the Club of the amount of EUR 204,151.62 NET (hereinafter,
'The Settlement Amount')”.
3.
Clause 4 of the Agreement reads as follows:
“The Parties agree that the Settlement Amount of EUR 204.151, 62 NET shall be paid by
the Player to the Club in instalments on the following dates:
- EUR 15,000.00 by 30.11.2020
- EUR 15,000.00 by 31.12.2020
- EUR 15,000.00 by 31.01.2021
- EUR 15,000.00 by 28.02.2021
- EUR 15,000.00 by 31.03.2021
- EUR 15,000.00 by 30.04.2021
- EUR 15,000.00 by 31.05.2021
- EUR 15,000.00 by 30.06.2021
- EUR 15,000.00 by 31.07. 2021
- EUR 15,000.00 by 31.08.2021
- EUR 15,000.00 by 30.09.2021
- EUR 15,000.00 by 31.10.2021
- EUR 15,000.00 by 30.11.2021
- EUR 9,151.62 by 31.12.2021”
4.
Clause 7 of the Agreement reads as follows:
“If (for whatever reason) the Settlement Amount i.e. any Instalment is not paid to the Club in
accordance with the provisions established in the Settlement Agreement, then the Player agrees
and recognizes that such due payment shall be an uncontested contractual debt of the Player
to the Club”.
5.
Clause 8 of the Agreement reads as follows:
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“Both Parties agree that, in case of the Player's failure to comply with its financial obligations
pursuant to the Clauses 3 and 4 of this Settlement Agreement, the Club (the creditor) shall have
to put the Player (the debtor) in default in writing, granting a deadline of extra 10 days for the
Player in default to remedy such breach i.e. to comply with his financial obligations due”.
6.
Clause 9 of the Agreement reads as follows:
“In addition, if the Player does not comply with his financial obligations within the additional
time limit provided to amend, it will be considered as a material breach of the Settlement
Agreement and the Club will be entitled to receive from the Player, as from the date in which
the material breach of the Settlement Agreement is committed by the Player:
i. All Instalments unpaid pursuant to this Settlement Agreement will become due since the
material breach of the Settlement Agreement by the Player.
ii. The interest calculated at the rate of ten per cent (10%) per annum, payable since the
material breach”.
7.
Clause 19 of the Agreement reads as follows:
“This Agreement shall be governed by and interpreted in accordance with the regulations of
FIFA and the Swiss Law (…)”
8.
On 9 December 2020, the Claimant put the Respondent in default and it granted him an
additional time limit of 10 days to comply with his financial obligation as per the Agreement
however to no avail.
II.
PROCEEDINGS BEFORE FIFA
9.
On 30 December 2020, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a.
The claim of the Claimant
10.
According to the Claimant, the Respondent had failed to comply with the financial
obligations set out in the Agreement.
11.
The requests for relief of the Claimant were the following:
“1. The Respondent has to pay to the Claimant the amount EUR 204,151.62 net as due and
outstanding settlement amount;
2. The Respondent has to pay to the Claimant the interest at the rate of 10% p.a. since 01
December 2020 until the date of effective payment;
3. The Respondent is ordered to pay a fine in the amount of 5.000,00 CHF.
4. In case of the failure to pay the relevant amounts in due time, the Respondent is imposed
with a ban in taking part in any football-related activity until the due amounts are paid;
5. The Respondent has to pay the total costs of this procedure if there are any.”
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b.
Position of the Respondent
12.
According to the Respondent, he had not complied with the payments due to “financial
difficulties”.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
13.
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 30 December 2020 and
submitted for decision on 6 May 2021. Taking into account the wording of art. 21 of the
January 2021 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
14.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and
b) of the Regulations on the Status and Transfer of Players (edition February 2021), 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 Serbian club.
15.
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 Player (edition February 2021), and
considering that the present claim was lodged on 30 December 2020, the October 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
16.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
17.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
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c.
18.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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
19.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the Respondent does not contest the claim made by the
Claimant.
20.
The DRC deemed proven that the Respondent had not complied with the first instalment
of the Agreement which was due on 30 November 2020. Moreover, based on the
information available on file, it appears that the Respondent has not complied with any of
the subsequent instalments.
21.
Furthermore, the DRC observed that the Claimant had complied with the contractual terms
agreed in the event of a default.
22.
After careful consideration of the documentation on file, the Chamber deemed that the
contractual breach was committed by the Respondent on the 19 December 2020, when
the 10 days’ extended deadline period elapsed.
23.
In this context, the Chamber acknowledged that it its task was to ascertain the
consequences of the contractual breach committed and admitted by the Respondent.
ii. Consequences
24.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
25.
The Chamber referred itself to clause 9 of the Agreement whereby the parties had agreed
the consequences in the event of a breach by the player.
26.
In particular, the members of the DRC deemed that this clause contains an acceleration
clause which enables the Claimant to request all future instalments. The Chamber deemed
this provision reasonable and proportionate.
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27.
Additionally, in the same clause the parties agreed the application of 10% interest per
annum as from the date of the breach. The Chamber deemed this provision reasonable and
proportionate.
28.
The Chamber further considered the prayers for relief from the Claimant and determined
that there is neither contractual nor regulatory basis to impose a fine of CHF 5,000 as
requested. Hence, the Chamber determined that this claim had to be rejected.
29.
Hence, the Chamber decided that the Respondent shall be liable to pay to the Claimant the
amount of EUR 204,151.62 as outstanding amount plus 10% interest p.a. as from 20
December 2020, i.e. the day after the breach, until the date of effective payment
iii. Compliance with monetary decisions
30.
Finally, taking into account the considerations above, the Chamber referred to par. 1 lit.
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.
31.
In this regard, the DRC highlighted that, against players, the consequence of the failure to
pay the relevant amounts in due time shall consist on a ban from playing in official matches
up until the due amount is paid. The overall maximum duration of the ban shall be six
months.
32.
Therefore, bearing in mind the above, the DRC 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, communicates the relevant bank details to the
Respondent, provided that the decision is final and binding, 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.
33.
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. 24bis par. 8
of the Regulations.
d.
34.
Costs
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
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35.
Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
36.
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, FC Partizan, is partially accepted.
2.
The Respondent, Cedric Gogoua Kouname, has to pay to the Claimant, the amount of EUR
204,151.62 as outstanding amount plus 10% interest p.a. as from 20 December 2020 until the
date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
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.
5.
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).
6.
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:
1. The Respondent shall be banned shall be restricted on playing in official matches up until
the due amount is paid and for the maximum duration of six months. 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).
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 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 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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