Labour Disputes
Texto da decisão
REF FPSD-5594
Decision of the
Dispute Resolution Chamber
passed on 27 October 2022
regarding an employment-related dispute concerning the player Lonsana
Doumbouya
COMPOSITION:
Lívia Silva Kägi (Brazil), Acting Deputy Chairperson
Johan van Gaalen (South Africa), member
Mario Flores Chemor (Mexico), member
CLAIMANT / COUNTER-RESPONDENT:
Lonsana Doumbouya, France
Represented by Eleven & Law
RESPONDENT / COUNTER-CLAIMANT:
Shanghai Shenhua FC, China PR
Represented by Muñoz & Arias Sports Lawyers
INTERVENING PARTY:
Club Buriram United, Thailand
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I. Facts of the case
1.
On 30 July 2021, the French player, Lonsana Doumbouya (hereinafter: Claimant or player)
and the Chinese club, Shanghai Shenhua FC (hereinafter: club or Respondent) concluded
an employment contract (hereinafter: contract) valid as from 30 July 2021 until 31
December 2022.
2.
According to the contract, the Respondent undertook to pay the Claimant the following
amounts:
-
USD 145,454.40 gross (USD 80,000 net) as monthly salary until 31 December
2021;
USD 181,818.16 gross (USD 100,000 net) as monthly salary for 2022.
USD 4,000 net as bonus for every victory in matches in “CSL, Chinese Cup and
Asian Champions League”;
USD 2,000 net as bonus for every draw in matches in “CSL, Chinese Cup and Asian
Champions League”;
USD 3,000 net as monthly accommodation fee.
3.
Furthermore, according to the contract, the player is entitled to “3 round-trip business class
fight tickets” from Shanghai to France for “each contractual year (every 12 months from the
signing date of this Contract constitutes a contractual year)”.
4.
Art. 5 of the contract established, inter alia, the following penalties:
-
-
5.
“A penalty will be imposed for each absence from a training session. More than five
times training absences without any justified reason shall be regarded as a material
breach of the contract. The player will pay EUR 20,000 penalty after the first absence,
EUR 40,000 penalty for the second absence, EUR 80,000 additional penalty for third
absence and each subsequent absence”;
“Failing to return on time – up to four day delays (except force majeure) from
approved vacations or personal leave will lead to a EUR 30,000 penalty. A five days
delay will result to a EUR 50,000 penalty. If the player returns more than 5 days late,
a EUR 100,000 penalty will be imposed.”
Art. 9 of the contract, inter alia, stipulates:
-
-
“5.6 The Parties hereby expressly and irrevocably agree that, in accordance Art. 17 of
FIFA Regulations on the Status and Transfer of Players, in the event the player
terminates the contract without just cause, or the Club terminates the contract with
just cause due to a breach of contract of the player, the player will be liable to
compensate the club with the amount of USD 10,000,000”.
“5.7 The Parties hereby expressly and irrevocably agree that, in accordance Art. 17 of
FIFA Regulations on the Status and Transfer of Players, in the event the Club
terminates the contract without just cause due to a breach of contract of the Club,
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-
-
the Club will be liable to compensate the Player with the amount equal to all
remaining remuneration due to the Player from the moment of termination and until
the end of the end the contract, i.e. 31 December 2022. This remuneration includes
salary, premiums, bonuses, pre-payments”.
“6. [The Player] has the right to terminate this Contract by notifying Party A in writing
by providing [the club] in writing by providing [the club], a notice period of 10 days
if any of the following events occurs:
6.1. [the club] fails to pay salary to [The Player] for more than two (2) months and fails to
remedy such default within 15 (fifteen) days upon receipt of [The Player]’s notification. […]”
6.
On 15 November 2021, the club held a meeting with its staff, including the player,
addressing its financial crisis caused by COVID-19. According to the club, in said meeting
was proposed to postpone the payment of the salaries until “February or March next year”.
7.
On 24 December 2021, the player, and the other foreign players, left China for their
holidays.
8.
On 3 January 2021, the club informed the player that the pre-season would start on 16
February 2022.
9.
On 28 January 2021, the player informed the club that no flights were available in February
2022 and that he would join in March 2022.
10. On 10 February 2022, the player exchanged Chat messages with an alleged translator of
the club, who informed him that the preparation for the new season is postponed. Upon
request of the player, said person stated that there is no news on the outstanding salaries.
11. On 12 February 2022, the club informed its foreign players about the arrival modalities in
China in connection with quarantine and COVID-19. Also, the club stated that the players
should book their flights and inform the club accordingly.
12. On 18 February 2022, the Claimant put the Respondent in default and requested payment
of USD 373,687.70 net, corresponding to his salaries between October 2021 and
December 2021, as well as match bonuses and flight tickets. The player requested
payment within 15 days. Moreover, the player requested the club to organise his return
for 1 March 2022.
13. On 7 March 2022, the player terminated the contract with the club due to the outstanding
remuneration as well as due to the fact that the club failed to organize the player’s travel
to return.
14. On 1 June 2022, the player signed an employment contract with the Thai club, Buriram
United, valid as from 1 June 2022 until 31 May 2024, including a monthly salary of USD
15,000.
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II. Proceedings before FIFA
15. On 28 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 player
16. In his claim, the player requested the following monies:
-
USD 839,687.22 as outstanding remuneration plus 5% p.a. as of the due dates;
USD 1,861,681.6 as compensation for breach of contract plus 5% p.a. as of the
date of claim (residual value);
USD 1.090,908,96 (6 monthly salaries) or alternatively USD 545,454.8 (3 monthly
salaries) as additional compensation.
17. In his claim, the player argued that he had just cause to terminate the contract on 7 March
2022 due to the outstanding remuneration of more than 5 monthly salaries and since the
club did not organise his return to China.
18. The player held that the following amounts remained outstanding at the moment of the
termination:
19. The player further held being entitled to compensation for breach of contract in the
amount of USD 1,861,681.6 (10x USD 181,818.60 as salaries plus 10x USD 3,000 as
accommodation allowance plus USD 13,500 corresponding to three flight tickets).
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b. Position of the club / Counterclaim
20. In its reply, the club rejected the claim and lodged a counterclaim against the player,
requesting the following monies:
-
USD 10,000,000 as compensation for breach of contract (in accordance with art.
9 of the contract);
USD 640,000 as penalties;
Furthermore, the club requested that the player’s new club shall be declared
jointly and severally liable.
ALTERNATIVELY, the club requested that no compensation shall be payable to
the player; or that the amount payable as compensation shall be reduced by so
that the club would only be liable to reimburse a flight ticket in the amount of
CNY 10,120.
21. The club mainly argued that the player agreed to postpone to the salary payments.
According to the club, the player did so since he never objected against the outcome of
the meeting dated 15 November 2021 and carried on rendering his services.
22. On account of the above, the club maintained that the player accepted its proposal to
postpone the payment of the outstanding remuneration.
23. In this context, the club held that the player had no just cause to terminate the contract
on 7 March 2022.
24. Further, the club argued that the player refused to return to Shanghai and changed his
mind while the club was waiting for his confirmation of the definitive return flight date.
25. According to the club, the player used the situation with the flight tickets as an excuse as
he had no intention to return to the club. Therefore, the club maintained that the player
acted in bad faith.
26. As a conclusion, the club argued that it is entitled to compensation for breach of contract
in the amount of USD 10,000,000 as established in the contract.
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27. Further, the club pointed out that the contract (art. 5) established the penalty for missed
trainings and a delayed return and that the player therefore is liable to pay the amount
of USD 640,000, and as follows:
28. Alternatively, the club held that no compensation shall be awarded to the player due to
his behaviour and bad faith.
29. The club further contested the information submitted by the player regarding his match
bonuses.
c. Reply of the player to the Counterclaim
30. In his reply to the counterclaim, the player rejected the club’s claim and reiterated his
position.
31. The player contested having accepted to postpone the salary payments. In this regard,
the player pointed out that “silent consent is impossible”.
32. He confirmed that he was at the meeting, but he held that there was no permanent
translation and he did not understand that he possibly agreed to any postponement.
33. In this context, the player argued that there is no written agreement regarding such
postponement on file. The player pointed out that he requested his salaries several times
orally between November 2021 and February 2022.
34. Regarding his alleged failure to return to China, the player pointed out that it was the
club’s obligation to pay for the flight and that he was not yet reimbursed for the flight in
December 2021. Therefore, the player did not want to pay for another flight by himself.
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35. The player further held that the compensation clause invoked by the club shall be
disregarded as it is not reciprocal and disproportionate.
36. Regarding the claimed penalties from the player, he argued that there were no
disciplinary procedures and no fines were imposed until the FIFA proceeding. According
to the player, the fines cannot be imposed post-factum.
d. Position of the new club
37. Buriram United rejected the club’s counterclaim and endorsed the player’s position.
38. In this context, Buriram United held that it was informed at the end of May 2022 that the
player is “free to sign”.
39. Further, the Thai club pointed out that the player provided it with his termination letter.
40. Moreover, Buriram United argued that the club did not oppose to ITC in the process of
registration.
41. On account of the above, Buriram stated that it did not induce the player to breach his
contract, in case the Chamber would decide that he did not have just cause.
42. However, according to the Thai club, the player had just cause to terminate the contract.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 28 March 2022 and submitted
for decision on 27 October 2022. Taking into account the wording of art. 34 of the June
2022 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.
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2.
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 (July 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 a French player
and a Chinese club.
3.
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 (July 2022 edition), and
considering that the present claim was lodged on 28 March 2022, the March 2022 edition
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
4.
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
5.
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
6.
The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties dispute the justice of the early
termination of the contract by the player.
7.
Furthermore, the DRC duly noted that the club lodged a counterclaim since it was of the
opinion that the player did not have just cause to terminate the contract.
8.
In this context, the Chamber acknowledged that its task was to determine as to whether
the contract was terminated by the player with or without just cause and to decide on the
consequences thereof.
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9.
The members of the Chamber subsequently started to analyse the circumstances of the
matter at hand. In doing so, the DRC noted that the player terminated the contract with
the club on 7 March 2022, after a default notice for 5 monthly salaries, bonuses and flight
tickets arguing that he had just cause due to the outstanding remuneration as well as the
fact that the club did not organise his return flight to China.
10. On the other hand, the DRC noted that club’s argumentation according to which the
player agreed to postpone payments he was entitled to since he was taking part in the
meeting dated 15 November 2021 and since he did not oppose in the aftermath of said
meeting. According to the club, the player acted in bad faith and did not have just cause
to terminate the contract. Therefore it requested payment of compensation for breach of
contract as well as penalties for missed trainings and late “arrival” between 1 and 7 March
2022.
11. After taking into account the documentation submitted by the parties, the DRC
established that the player never explicitly agreed to receive his salary at a later stage.
Therefore, the Chamber rejected the club’s argumentation in this regard.
12. Moreover, the members of the Chamber wished to emphasize that the parties were in
contact regarding the player’s return to China between February 2022 (initially planned
return) until the termination in March 2022. After postponing the start of the pre-season,
the club expected the player back on 1 March 2022. Nevertheless, it did not assist the
player in booking a suitable flight and it failed to reply to the formal default notice already
sent on 18 February 2022.
13. Regarding the penalties claimed by the club, the DRC decided to disregard them as there
was no disciplinary procedure taking place and such penalties appear to have been
claimed/imposed during the present proceedings for the first time.
14. Taking all these circumstances into account, and based on the outstanding remuneration
of more than 5 monthly salaries, the DRC had no other option than to conclude that the
player had just cause to terminate the contract on 7 March 2022.
15. On account of the above, the Chamber decided to reject the club’s counterclaim.
ii. Consequences
16. 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.
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17. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are the following net amounts:
- USD 240,000 (salaries October 2021 until December 2021; 3x USD 80,000)
- USD 200,000 (salaries for January and February 2022, 2x USD 100,000)
- USD 15,000 (Accommodation fee from October 2021 until February 2022; 5x USD 3,000)
- USD 20,000 as match bonuses
- CNY 10,120 as reimbursement for the flight ticket dated 24 December 2021.
18. As a consequence, and 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
amounts which were outstanding under the contract at the moment of the termination,
i.e. USD 475,000 and CNY 10,120.
19. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber in this regard, the latter 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.
20. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations,
the amount of compensation shall be calculated, in particular and unless otherwise
provided for in the contract at the basis of the dispute, with due consideration for the law
of the country concerned, the specificity of sport and further objective criteria, including
in particular, the remuneration and other benefits due to the player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
21. In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the pertinent employment contract contained a provision by means of
which the parties had beforehand agreed upon an amount of compensation payable by
the contractual parties in the event of breach of contract.
22. In this regard, the Chamber took note of the wording of clause 9 of the contract, which
established that:
“5.6 The Parties hereby expressly and irrevocably agree that, in accordance Art. 17 of FIFA
Regulations on the Status and Transfer of Players, in the event the player terminates the
contract without just cause, or the Club terminates the contract with just cause due to a breach
of contract of the player, the player will be liable to compensate the club with the amount of
USD 10,000,000”.
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“5.7 The Parties hereby expressly and irrevocably agree that, in accordance Art. 17 of FIFA
Regulations on the Status and Transfer of Players, in the event the Club terminates the contract
without just cause due to a breach of contract of the Club, the Club will be liable to compensate
the Player with the amount equal to all remaining remuneration due to the Player from the
moment of termination and until the end of the end the contract, i.e. 31 December 2022. This
remuneration includes salary, premiums, bonuses, pre-payments”.
23. After analysing the content of the aforementioned clause, the DRC concluded that it
fulfilled the criteria of reciprocity and proportionality, in line with the Chamber’s
longstanding jurisprudence, and therefore was to be applied in the case at hand to
determine the amount of compensation payable by the Respondent to the Claimant.
24. Consequently, the Chamber decided that the amount of USD 1,030,000, as residual value
of the contract (March 2022 to December 2022, 10x USD 100,000 plus 10x USD 3,000 as
accommodation fee), as per the compensation clause agreed between the parties in the
contract, is due to the player by the club.
25. Lastly, taking into consideration the player’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 28 March 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
26. 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.
27. 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.
28. 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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29. 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.
30. 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
31. 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.
32. 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.
33. 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/Counter-Respondent, Lonsana Doumbouya, is partially
accepted.
2.
The Respondent/Counter-Claimant, Shanghai Shenhua FC, has to pay to the
Claimant/Counter-Respondent, the following amount(s):
- USD 83,000 net as outstanding remuneration plus 5% interest p.a. as from 1 November
2021 until the date of effective payment;
- USD 83,000 net as outstanding remuneration plus 5% interest p.a. as from 1 December
2021 until the date of effective payment;
- USD 83,000 net as outstanding remuneration plus 5% interest p.a. as from 1 January
2022 until the date of effective payment;
- USD 103,000 net as outstanding remuneration plus 5% interest p.a. as from 1 February
2022 until the date of effective payment;
- USD 103,000 net as outstanding remuneration plus 5% interest p.a. as from 1 March
2022 until the date of effective payment;
- USD 20,000 net as outstanding remuneration plus 5% interest p.a. as from 28 March
2022 until the date of effective payment;
- CNY 10,120 net plus 5% interest p.a. as from 28 March 2022 until the date of effective
payment;
- USD 1,030,000 net as compensation for breach of contract plus 5% interest p.a. as from
28 March 2022 until the date of effective payment.
3.
Any further claims of the Claimant/Counter-Respondent are rejected.
4.
The counterclaim of the Respondent/Counter-Claimant is rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
6.
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/Counter-Claimant 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.
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7.
The consequences shall only be enforced at the request of the Claimant/CounterRespondent in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the
Status and Transfer of Players.
8.
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
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