Labour Disputes
Texto da decisão
REF. FPSD-6851
Decision of the
Dispute Resolution Chamber
passed on 1 March 2023
regarding an employment-related dispute concerning
the player MEDWIN BITEGHE MENDAME
BY:
Philippe Diallo (France), Single Judge of the DRC
CLAIMANT:
Medwin Biteghe Mendame, Gabon
Represented by Mr Slim Boulesnam
RESPONDENT:
Club Al Helal Sporting, Libya
pg. 2
REF. FPSD-6851
I. Facts of the case
1.
On 1 October 2021, the parties concluded an employment contract (hereinafter: the contract),
valid as from the date of its signature until the end of the 2021/2022 season. According to the
information displayed in the Transfer Matching System (TMS), the said season came to an end
on 31 May 2022.
2.
According to the contract, the club undertook to pay to the player, inter alia, the following
remuneration:
-
USD 40,000 as sign-on fee;
USD 3,000 as monthly salary.
3.
The contract further provides that the player would be entitled to the total amounts described
in the contract, provided that he participates in 75% of the matches.
4.
In addition, the contract states that, in case of poor performance of the player, the club has the
right to unilaterally terminate the contract against payment of the amount of USD 5,000 to the
player.
5.
By means of his letter dated 27 June 2022, the player put the club in default of payment in the
amount of USD 45,000, thereby granting the club a deadline of 15 days to remedy the default.
6.
Thereto, the club replied on 11 July 2022, arguing that the content of the player’s default notice
is not true and that the player was imposed sporting sanctions that prevented the player from
receiving the financial dues as per the contract
II. Proceedings before FIFA
a. Claim of the Claimant
7.
On 27 July 2022, the player lodged a claim against the club before FIFA, requesting to be
awarded outstanding remuneration in the total amount of USD 48,000, plus 5% interest p.a. as
from the respective due dates, broken down by the Claimant as follows:
-
USD 30,000 as unpaid part of the sign-on fee;
USD 3,000 as salary of January 2022;
USD 3,000 as salary of February 2022;
USD 3,000 as salary of March 2022;
USD 3,000 as salary of April 2022;
USD 3,000 as salary of May 2022;
USD 3,000 as legal fees.
pg. 3
REF. FPSD-6851
8.
In his claim, the player argued that despite the parties having validly entered into the contract,
the club failed to pay the player’s financial entitlements even after having been put in default
of payment by the Claimant. In this context, the Claimant held that it had no alternative but to
lodge the present claim.
b. Reply of the Respondent
9.
In its reply, the Respondent held that the player’s full remuneration under the contract is USD
40,000.
10. In addition, the Respondent explained that it has paid the player the following remuneration:
-
USD 10,000 as part of the sign-on fee;
USD 3,000 as salary of October 2021;
USD 6,000 as salary of November and December 2021;
USD 3,000 as salary of January 2022;
USD 3,000 as salary of February 2022;
USD 3,000 as salary of March 2022.
11. The above being said, the Respondent maintained that, since the beginning of the contract, the
player was called, on several occasions, by the Gabonese football association to join his national
team. In particular, the club provided the following periods during which the player was allowed
to be absent from the club’s facilities: from 27 December 2021 to 23 January 2022 in order to
participate in the CAN 2022 African Nations Championship, but the player only returned to the
club on 12 February 2022; from 19 May 2022 to 9 June 2022 in order to participate in 2 matches
of the qualifiers for the CAN 2023 African Nations Championship on the condition that the
player would return to the club on 19 June 2022, but the player only returned later.
12. In this context, arguing that the player permanently failed to keep his word and returned to the
club’s facilities later than he should have, the Respondent held that it rightfully imposed a fine
of USD 3,000 (equal to one monthly salary) on the player.
c. Rejoinder of the Claimant
13. In his rejoinder, the Claimant reiterated his previous argumentation and stressed, in particular,
the following:
-
That the club only paid USD 10,000 out of the sign on fee of USD 40,000;
That the club only paid the salaries of October, November and December 2021;
That the club forged the player’s signatures that are stamped on the alleged
payment’s acknowledgements corresponding to the salaries of January, February and
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REF. FPSD-6851
-
March 2022 in the amount of USD 3,000 each;
As to the fine to which the club referred, the Claimant wished to recall that the player
was made available to his national team, which justified his absences, and that no
disciplinary proceedings were ever opened against him for the simple reason that
being made available to national teams does not constitute a breach of contract. In
this respect, the Claimant highlighted that if the club had any grievances against him,
the procedure to follow was to inform him in writing and to put in place a procedure
that respected his right to a fair trial. In this context, the Claimant stated that it is clear
that the fine of USD 3,000 is opportunistic as the club is attempting to fraudulently
deduct one of his monthly salaries.
d. Final comments of the Respondent
14. In its final comments, the Respondent reiterated its previous arguments. In particular, the club
stressed that the player’s total remuneration was USD 40,000, which consists of a sign-on fee
of USD 10,000 and a monthly salary of USD 3,000.
15. As for the acknowledgements of payment which signatures have been challenged by the
Claimant, i.e. those concerning the salaries of January, February and March 2022, the
Respondent held that the originals specimen of the said documents are available.
16. In connection with the fine imposed on the player, the club rejected the arguments of the
Claimant.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter referred to as Single
Judge) 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 27 July 2022 and submitted for decision
on 1 March 2023. Taking into account the wording of art. 34 of the October 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.
18. Subsequently, the members of 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 (October 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 player from Gabon
and a club from Libya.
pg. 5
REF. FPSD-6851
19. Subsequently, the Single Judge 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 (October 2022 edition) and
considering that the present claim was lodged on 27 July 2022, the July 2022 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
20. 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 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. His 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 it considered pertinent for the
assessment of the matter at hand.
i. Main legal discussion and considerations
22. The foregoing having been established, the Single Judge moved to the substance of the matter
and recalled that the Claimant is requesting to be awarded USD 45,000 as outstanding
remuneration, plus 5% interest as from the respective due dates. In his claim, continued the
Single Judge, the player argues that the club contractually undertook to pay him a sign-on fee
of USD 40,000, plus a monthly salary of USD 3,000 and that the latter -despite having been put
in default of payment- failed to proceed with the payment of the amounts due.
23. On its part, the club argued that the full contractual monetary value amounts to USD 40,000
and that it duly paid the player’s remuneration until the month of March 2022, the Respondent
providing documentary evidence in support of his allegations, the club rightfully imposing a fine
on the player in the amount of USD 3,000 due to his unjustified absences.
24. What is more, continued the Single Judge, the Claimant contested the legitimacy of the
documentary evidence provided by the club, arguing that the latter forged his signature on the
documents submitted by the club whereby the player allegedly acknowledged having received
his salaries of January, February and March 2022.
pg. 6
REF. FPSD-6851
25. On its part, the club reiterated his previous arguments and held being ready to submit the
original of the documents whose legitimacy was being contested by the player.
A.) What is the total remuneration to which the player is entitled as per the contract?
26. The epigraph of the contract which relates to the player’s remuneration states the following:
27. After a careful analysis of the above, the Single Judge determined that the contract is clear when
establishing that the club undertook to pay to the player a sign-on fee of USD 40,000 and a
monthly salary of USD 3,000, as underscored by the player. Although it is true that the wording
of the relevant clause is not crystal-clear, underscored the Single Judge, also taking into account
that it specifies a further payment of USD 10,000 which -as pointed out by the Claimant- seems
to integrate the sign-on fee due to the player, the Single Judge concluded that the spirit of the
clause was the one indicated by the Claimant: the player is entitled to a sign-on fee of USD
40,000 as well as to a salary of USD 3,000 per month.
28. In addition, continued the Single Judge, the argument of the Claimant is to be followed: the
employment contract, which is traditionally drafted by the employer, and which contains the
club’s logo and header, in case of ambiguity, cannot be interpreted in favour of the party that
contributed to the creation of the said ambiguity when drafting it in a non-clear manner.
29. The aforementioned argument also supports the allocation of the remuneration brought up by
the player.
B.) Has the Respondent met its burden of proof as to the amounts which payment was disputed by
the Claimant?
30. In accordance with the jurisprudence of the Football Tribunal, explained the Single Judge,
whenever a debtor provides a document allegedly signed by the creditor whereby the latter
acknowledges having received the amounts due to them and the creditor challenges the
signature therein contained, the debtor carries the burden to proof that the relevant monetary
transaction was actually performed by submitting, v. gr: banking documentation pertaining to
the withdrawal of the relevant founds or proof of having performed a banking transfer wire to
the creditor a beneficiary.
pg. 7
REF. FPSD-6851
31. In casu, insofar as the Respondent has not provided any further evidence in support of its
allegations that it duly complied with the payment of the salaries of January, February and
March 2022, the Single Judge concluded that the club did not discharge itself from its obligation
to pay the said salaries.
C.) Did the club rightfully impose the fine of USD 3,000 on the player?
32. In this respect, the Single Judge stressed that, although the club maintains having validly
imposed a fine of USD 3,000 on the player due to his unjustified absences after having joined
his national team, the club has failed to provide evidence of having conducted any disciplinary
proceedings against the player in respect of his right to be heard. In addition, the Single Judge
noted that the club has even failed to provide its final decision to impose any such fine and
deduct it from the player’s monthly salary.
33. Thus, the Single Judge concluded that the said fine is to be considered as unlawfully imposed
on the player and must, therefore, be disregarded.
ii. Consequences
34. Having stated the above, the members of the Single Judge turned their attention to the question
of the consequences of such unjustified breach of contract committed by the Respondent.
35. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to USD 45,000, which
matches with the Claimant’s request for relief, with the exception of the petitum of the Claimant
to be awarded USD 3,000 as legal costs, which must be rejected cf. art. 25 para. 8 of the
Procedural Rules.
36. 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 which
were outstanding under the contract until the date on which the contract came to an end, i.e.
USD 45,000.
37. In addition, taking into consideration the Claimant’s request as well as the constant practice of
the Single Judge in this regard, the latter decided to award the Claimant interest at the rate of
5% p.a. on the outstanding amounts as from their respective due dates until the date of
effective payment.
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REF. FPSD-6851
iii. Compliance with monetary decisions
38. 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.
39. 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.
40. 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.
41. 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.
42. 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
43. 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.
44. 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.
45. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 9
REF. FPSD-6851
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, MEDWIN BITEGHE MENDAME, is partially accepted.
2.
The Respondent, Al Helal Sporting, has to pay to the Claimant, the following amount:
- USD 45,000 as outstanding remuneration plus 5% interest p.a. as follows:
-
On the amount of USD 30,000, as from 2 October 2021 until the date of effective
payment;
On the amount of USD 3000, as from 1 February 2022 until the date of effective
payment;
On the amount of USD 3000, as from 1 March 2022 until the date of effective payment;
On the amount of USD 3000, as from 1 April 2022 until the date of effective payment;
On the amount of USD 3000, as from 1 May 2022 until the date of effective payment;
On the amount of USD 3000, as from 1 June 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. 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.
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.
pg. 10
REF. FPSD-6851
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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pg. 11