Labour Disputes
Texto da decisão
REF. FPSD-7083
Decision of the
Dispute Resolution Chamber
passed on 26 April 2023
regarding an employment-related dispute concerning
the player KOUA VIVIEN ASSIE
BY:
Dana Al-Noaimi (Qatar), Single Judge of the DRC
CLAIMANT:
Koua Vivien Assie, Ivory Coast
RESPONDENT:
Croissant Sportif Chebba, Tunisia
Represented by Hamouda Bouazza and
Mhamed Brahem
pg. 2
REF. FPSD-7083
I. Facts of the case
1.
On 2 August 2021, the Ivorian player, KOUA VIVIEN ASSIE (hereinafter: the player or the
Claimant) and the Tunisian club, Croissant Sportif Chebba (hereinafter: the club or the
Respondent) concluded an employment contract (hereinafter: the contract), valid as from
1 August 2021 until 30 June 2023.
2.
According to clause 3 of the contract, the club undertook to pay to the player, inter alia, the
following remuneration:
-
EUR 10,000 as sign-on fee;
EUR 2,000 as monthly salary;
EUR 20,000 per season as performance bonus per season (“prime de rendement”),
which depends on the number of official matches played by the player;
EUR 10,000 at the beginning of the 2022/2023 season.
3.
Clause 7 of the contract states that the player undertakes to respect the internal
regulations of the club, acknowledging having received a copy thereof.
4.
Clause 11 of the contract stipulates that the contract must respect the provision of the
Tunisian Regulations, both the professional football regulations and the general ones.
5.
By means of his notice dated 30 June 2022, the player put the club in default of payment in
the amount of EUR 32,000 corresponding to 6 monthly salaries and the performance
bonus, thereby granting the club a deadline of 10 days to cure its breach.
6.
On 13 July 2022, the player unilaterally terminated the contract in writing.
7.
On 1 August 2022, the player signed a new contract (hereinafter: the first new contract)
with the Jordan club, Alhussein SC, valid as from 1 August 2022 until 15 November 2022,
whereby the player was entitled to a monthly salary of approximately EUR 6,000. The first
new contract came to an end by 31 August 2022. Thus, the player received a fixed income
of EUR 6,000 during the validity of the first new contract.
8.
On 4 September 2022, the player signed another contract (hereinafter: the second new
contract), with the Libyan club Al Madina Club, valid as from the date of its signature until
3 September 2023, whereby the player was entitled to a total fixed remuneration of
approximately EUR 30,000, i.e. a monthly remuneration of EUR 2,500.
9.
Thus, during the overlapping period, i.e. between August 2022 and June 2023, the player
was in a position to mitigate his damages in the total amount of EUR 31,000 (6,000 +
25,000).
pg. 3
REF. FPSD-7083
II. Proceedings before FIFA
a. Position of the Claimant
10. On 16 August 2022, the player lodged a claim against the club before FIFA, requesting to
be awarded outstanding remuneration and compensation for breach of contract in the
total amount of EUR 78,000, plus 5% interest p.a. as from the due dates concerning the
outstanding moneys and as from the date of termination in connection with the
compensation for breach of contract, broken down by the Claimant as follows:
Outstanding remuneration: EUR 34,000
-
EUR 2,000 as salary of December 2021;
EUR 2,000 as salary of January 2022;
EUR 2,000 as salary of February 2022;
EUR 2,000 as salary of March 2022;
EUR 2,000 as salary of April 2022;
EUR 2,000 as salary of May 2022;
EUR 2,000 as salary of June 2022;
EUR 20,000 as performance bonus for the season 2021/2022.
Compensation for breach of contract: EUR 44,000
-
EUR 24,000 corresponding to the residual value of the salaries, i.e. 12 salaries of EUR
2,000 each (payable between July 2022 and June 2023);
EUR 20,000 as performance bonus for the season 2022/2023.
11. In his claim, the player argued that despite having validly entered into the contract and
having put the club in default of payment, the club did not cure its breach and even failed
to reply to the player’s notice, which led the player to unilaterally terminate the contract cf.
art. 14 of the RSTP.
12. As to the nature of the performance bonus, the Claimant held that it was not a conditional
payment but a fixed one.
b. Position of the Respondent
13. In its reply, the Respondent argued, inter alia, the following:
A. That the contract was automatically and prematurely terminated on 30 June 2022 as a
consequence of the club’s relegation to second division. In this respect, the club held
that, according to art. 109 of the Tunisian FA regulations, clubs playing in the second
division of Tunisia cannot sign foreign players to participate in official matches.
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REF. FPSD-7083
B. That, subsidiary to the above, the player would have terminated the contract without
just cause, insofar as he did not grant the club a deadline of 15 days to cure its breach,
as provided by art. 14bis RSTP and, hence, he cannot be entitled to any compensation
for breach of contract.
C. That, in any case, the player terminated the contract without just cause, as he signed a
new contract with Alhussein SC before terminating the contract at stake.
D. That, during the season 2021/2022, the player only played in 3 official matches and that
– according to the Regulations of the Tunisian FA – there is a method of calculation for
the performance bonus, according to which the player, in view of his participation in
official matches during the said season, would only be entitled to EUR 1,428.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter referred to as
the Single Judge) analysed whether she was competent to deal with the case at hand. In this
respect, she took note that the present matter was presented to FIFA on 16 August 2022
and submitted for decision on 26 April 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.
15. Subsequently, 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 (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 a player from Ivory
Coast and a club from Tunisia.
16. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she 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 16 August 2022, the July 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
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REF. FPSD-7083
b. Burden of proof
17. 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 she 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
18. Her 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, she 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 Single Judge moved to the substance of the
matter and deemed it appropriate to formulate the following questions in connection with
the substance of the matter at hand:
A. Can the argument of the Respondent as to the automatic termination of the contract due to
the club’s relegation be upheld?
20. In this respect, explained the Single Judge, although it is true that the contract (under clause
11 thereof) refers to the regulations of the Tunisian FA, it must be noted that: A.) art. 109
of the said regulations states that a club playing in the first division of Tunisian Football can
only select a maximum of 3 players to play in an official match, which cannot be understood
as intended by the Respondent, i.e. the said quota does not have any impact on the
termination of the contract; B.) the club never notified to the player of any premature
termination of the contract; C.) in any case, the club failed to provide a complete version of
the said regulations, which prevents the Chamber from assessing whether the argument
of the club could eventually be upheld.
21. Thus, the Single Judge determined that no automatic termination of the contract ever
occurred.
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REF. FPSD-7083
B. Did the player terminate the contract with just cause on 13 July 2022? Did the player sign a
new contract with a new club before formally terminating the contract at stake?
22. In this regard, the Single Judge observed that is undisputed between the parties that the
player put the club in default of payment of, at least, 6 outstanding salaries on 30 June
2022. However, the Single Judge noted that, via the default notice sent on the said date,
the player only granted the club a 10 days’ deadline to cure its breach, although – de facto
– it granted the club a deadline of 13 days. The above being said, the Single Judge deemed
that an assessment of whether the player terminated the contract with just cause cf. art.
14bis of the Regulations must be undertaken: the club, de facto, failed to remunerate the
player with his salaries between December 2021 and June 2022, also failing to pay him his
performance bonus (which, as acknowledged by the club, amounts to at least EUR 1,428).
23. In view of the aforesaid, the Single Judge concluded that although the requirements of art.
14bis of the Regulations were not met, the player did terminate the contract with just cause
on 13 July 2022, as the club failed to even reply to his default notice and a substantive
amount of his remuneration was outstanding by the date of termination.
24. As to the second of the questions, the following dates shall be recalled, underscored the
Single Judge:
-
Date of termination of the contract: 13 July 2022 (termination letter);
-
Date of signature of the first new contract: 1 August 2022 (as corroborated with the
information contained in the TMS).
25. Hence, the Single Judge concluded that the argumentation of the club in this respect needs
to be rejected: the player was not under contract with his new club while being
contractually engaged with the Respondent.
C. Is the performance bonus (prime de rendement), due as per clause 3 of the contract, a
conditional or a fixed payment?
26. In this respect, the Single Judge wished to clarify that the consideration of a “prime de
rendement”, in principle, holds the nature of a conditional payment, as it is linked to the
performance of the player. In any case, continued the Single Judge, to establish so, a caseby-case analysis shall be undertaken.
27. In casu, started the Single Judge, clause 3 of the contract specifies that the amount of EUR
20,000 represents the maximum amount due to the player per season as performance
bonus, amount that is dependant of the number of official matches played by the player
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REF. FPSD-7083
during the relevant season. Although the said clause does not refer to the calculation
method of the amounts eventually due to the player as performance bonus, which creates
some legal uncertainty, one could argue that – by virtue of application of clause 11 of the
contract – which refers to the regulations of the Tunisian FA, the player was in a position
to, at least, inform the Chamber of the number of games played and the amount to which
he would be entitled in application of the pertinent calculation method – concluded the
Single Judge.
28. However, the Claimant has simply considered the performance bonus as a fixed bonus,
which – in the opinion of the Single Judge – clearly differs from the wording of the relevant
paragraph of clause 3 of the contract. Thus, the Single Judge decided that, by failing to
sufficiently demonstrate being entitled to the performance bonus, the player did not meet
his standard of proof to be awarded any such bonus.
29. Nevertheless, considering that the club is acknowledging owing the player an amount of
EUR 1,428 for such consideration, the Single Judge determined that the player shall be
awarded the said amount.
ii. Consequences
30. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
31. 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 EUR 15,428 a
(salaries due between December 2021 and June 2022, in addition to the acknowledged
amount due as performance bonus).
32. 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 at the moment of the termination,
i.e. EUR 15,428.
33. 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 the respective due dates, i.e. the first
day of the following month and the date of termination in connection with the performance
bonus.
34. Having stated the above, the Single Judge 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 Single
Judge 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
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REF. FPSD-7083
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.
35. In application of the relevant provision, the Single Judge held that she 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. In this regard, the Single Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
36. As a consequence, the Single Judge determined that the amount of compensation payable
by the club to the player had to be assessed in application of the other parameters set out
in art. 17 par. 1 of the Regulations. The Single Judge recalled that said provision provides
for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
37. Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Single Judge
concluded that the amount of EUR 24,000 (i.e. the residual value of the contract) serves as
the basis for the determination of the amount of compensation for breach of contract.
38. In continuation, the Single Judge verified as to whether the player had signed an
employment contract with another club during the relevant period of time, by means of
which he would have been enabled to reduce his loss of income. According to the constant
practice of the DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration
under a new employment contract shall be taken into account in the calculation of the
amount of compensation for breach of contract in connection with the player’s general
obligation to mitigate his damages.
39. Indeed, the player found employment with the Jordan club, Alhussein SC, as well as with
the Libyan club, Al Madina Club. In accordance with the pertinent employment contracts,
the player was in a position to mitigate his damages in the total amount of EUR 31,000
(6,000 + 25,000). Therefore, the Single Judge concluded that the player mitigated his
damages in the total amount of EUR 31,000.
40. Subsequently, the Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables.
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REF. FPSD-7083
41. In the case at hand, the Single Judge confirmed that the contract termination took place
due to said reason i.e. overdue payables by the club, and therefore decided that the player
shall receive additional compensation.
42. In this respect, the Single Judge decided to award the amount of additional compensation
of EUR 6,000, i.e. three times the monthly remuneration of the player.
43. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the club must pay the amount
of EUR 6,000 to the player (i.e. the additional compensation only, as the player manged to
fully mitigate his damages when signing the subsequent 2 new employment contracts),
which was to be considered a reasonable and justified amount of compensation for breach
of contract in the present matter.
44. 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 13 July 2022, i.e. the date of termination, until the
date of effective payment.
iii. Compliance with monetary decisions
45. 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.
46. 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.
47. 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.
48. 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.
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REF. FPSD-7083
49. 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
50. 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.
51. 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.
52. Lastly, the Single Judge concluded her deliberations by rejecting any other requests for
relief made by any of the parties.
pg. 11
REF. FPSD-7083
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, KOUA VIVIEN ASSIE, is partially accepted.
2.
The Respondent, Croissant Sportif Chebba, must pay to the Claimant the following
amount(s):
- EUR 15,428 as outstanding remuneration plus 5% interest p.a. as follows:
-
On the amount of EUR 2,000, as from 1 January 2022 until the date of effective payment;
On the amount of EUR 2,000, as from 1 February 2022 until the date of effective
payment;
On the amount of EUR 2,000, as from 1 March 2022 until the date of effective payment;
On the amount of EUR 2,000, as from 1 April 2022 until the date of effective payment;
On the amount of EUR 2,000, as from 1 May 2022 until the date of effective payment;
On the amount of EUR 2,000, as from 1 June 2022 until the date of effective payment;
On the amount of EUR 2,000, as from 1 July 2022 until the date of effective payment;
On the amount of EUR 1,428, as from 13 July 2022 until the date of effective payment.
- EUR 6,000 as compensation for breach of contract plus 5% interest p.a. as from 13 July
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. 12
REF. FPSD-7083
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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pg. 13