F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 6 November 2020
Decision of the
DRC Judge
Passed on 6 November 2020,
regarding an employment-related dispute concerning the player Cyriac Gohi Bi Zoro
BY:
Omar Ongaro, (Italy), DRC Judge
CLAIMANT:
Cyriac Gohi Bi Zoro, Belgium
Represented by Mr Renaud Duchêne
RESPONDENT:
Giresunspor Kulübü, Turkey
Represented by Mr Ercan Sevdimbas
I. FACTS
1. On 14 August 2017, the Belgian player, Cyriac Gohi Bi Zoro (hereinafter: the Claimant) signed an
employment contract with the Turkish club, Sivasspor Kulübü Dernegi (hereinafter: Sivasspor) valid
from 15 August 2017 until 31 May 2020.
2. Clause 3 of the employment contract established that the Respondent will pay the Claimant EUR
600,000 as remuneration for each sporting seasons in 10 monthly salaries of EUR 60,000 each, the
first instalment being due on 25 September and the last one on 25 June of each year.
3. On 12 January 2019, Sivasspor, the Claimant and the Turkish club, Giresunspor Kulübü (hereinafter:
the Respondent) concluded a loan agreement (hereinafter: the agreement) valid until 31 May 2019.
4. Clause 3 of the agreement provided that, during the time of the loan, the Respondent will pay the
Claimant a total remuneration of EUR 180,000 as follows:
EUR 30,000 as advance payment;
EUR 30,000 on 31 January 2019;
EUR 30,000 on 28 February 2019;
EUR 30,000 on 31 March 2019;
EUR 30,000 on 30 April 2019 and
EUR 30,000 on 31 May 2019.
5. On 22 January 2019, the Claimant and the Respondent signed an addendum to the agreement
(hereinafter: the addendum).
6. Clause 1 of the addendum provided:
“The article 3 of the Loan Contract titled “Payments and Special Provisions” dated 12.01.2019 has
been amended as written below:
The parties agreed that Club will pay to the player in the amount of net EUR 180,000 as match
bonus payment, this amount will be paid in equal instalments, it is calculated by the amount divided
into 17 games which is announced by the Turkish Football Federation for the second half of the
season 2018/2019. The Player undertakes to release the club for all guarantee fee which is stated
in loan contract. For this reason, the Player´s guarantee fee is changed as match bonus fee which
is conditional fee as below:
The Player will be entitled to receive the full amount which is EUR 10,588.23 if he starts to the
match with first 11
The Player will be entitled to receive 100% of per match bonus which is EUR 10,588.23 –if he
joins to match from the bench afterwards;
The Player will be entitled to receive 100% of per match bonus which is EUR 10,588.23 –if he
is in the match squad but not played in the match;
The Player will not be entitled to receive any amount if he is not in first 18 squad of the match.”
7. On 31 July 2019, the Claimant sent a default notice to the Respondent requesting the amount of
EUR 31,764 and EUR 1,588.20 plus interest granting 10 days to remedy the default. In the same
default notice the Claimant reserved his right to claim EUR 180,000.
8. On 9 August 2019 and 7 September 2019, the Claimant sent two reminders letters.
9. The Claimant lodged the present claim against the Respondent requesting the total net amount of
EUR 180,000 plus an interest rate of 5% per annum from 12 January 2019 (allegedly date of nonpayment)
until the date of effective payment.
10. The Claimant argued that the player was pressured to accept the loan to the Respondent for a period
of 6 months. During this period, he was entitled to a guaranteed total salary of EUR 180,000.
11. Moreover, the Claimant alleged that 10 days after the conclusion of the agreement, he was forced
to sign the addendum. In this regard, the Claimant insisted on the fact that, although the amount of
EUR 180,000 was described in the addendum as “match bonus fee”, the sentence “The parties
agreed that Club will pay to the player in the amount of net EUR 180,000 as match bonus payment,
this amount will be paid in equal instalments, it is calculated by the amount divided into 17 games
which is announced by the Turkish Football Federation for the second half of the season 2018/2019”
clearly entailed that the amount of EUR 180,000 was guaranteed and merely entitled the Respondent
to pay the amount in 17 instalments.
12. The Claimant held that he was explained that he would receive the total amount of EUR 180,000 as
established in the agreement and that the sole purpose of the addendum was to allow the
Respondent to pay the agreed amount per match. In this regard, the Claimant emphasised that he
does not understand neither English nor Turkish but only French.
13. The Claimant stated that the Respondent broke the spirit of the agreement by side-lining him, and
he was allowed to play only 3 games, for a total of 84 minutes. For the rest of the matches, he was
not part of the list of 18 players, this with the sole purpose of not paying him any remuneration. In
addition, the Claimant stated that the Respondent did not even pay to him EUR 31,764.69 as bonuses
for the three matches played.
14. Furthermore, the Claimant argued that clause 1 of the addendum is to be considered a potestative
clause. The Claimant further argued that the Respondent forced the Claimant to train for six months
without any kind of salary.
15. In reply to the claim, the Respondent pointed out that the Claimant agreed on his free will to the
addendum, and that he indeed agreed to the payment of a salary of EUR 10,588.23 per match
played. The Respondent rejected the fact that the amendment of the remuneration clause of the
contract was potestative, as the Claimant agreed to it.
16. In this respect, the Respondent provided an abstract of the Turkish Football Association’s official
records demonstrating that the Claimant played 3 competitive matches for its club.
17. As such, the Respondent determined that the player was only entitled to received EUR 10,588.23 X
3 = EUR 31,764.69.
18. The Respondent indicated that it had made two payments to the Claimant, one of EUR 30,000 on
12 January 2019, and EUR 1,090 on 27 March 2019. The Respondent provided payment receipts for
these two payments bearing the Claimant’s signature, and insisted that the Claimant had chosen not
to make any mention of those payments in bad faith.
19. Asked by the FIFA administration to provide his comments as to the payment receipts submitted by
the Respondent, the Claimant first of all reiterated his position that he was entitled to a guaranteed amount of EUR 180,000 and that in any case, should the relevant clause be interpreted as a “per
match” bonus system, the clause would be potestative.
20. Furthermore, the Claimant expressed his surprise with regard to the payment receipts provided by
the Respondent, arguing that his signature on said receipts was falsified. With respect to the payment
of EUR 30,000, the Claimant underlined that the receipt mentions that this payment was made “in
advance” and that the payment was made “by hand”, i.e. in cash, which the Claimant considers as
being absurd for such a high amount.
21. Asked by the FIFA administration to provide his comments as to the payment receipts submitted by
the Respondent, the Claimant first of all reiterated his position that he was entitled to a guaranteed
amount of EUR 180,000 and that in any case, should the relevant clause be interpreted as a “per
match” bonus system, the clause would be potestative.
22. Furthermore, the Claimant expressed his surprise with regard to the payment receipts provided by
the Respondent, arguing that his signature on said receipts was falsified. With respect to the payment
of EUR 30,000, the Claimant underlined that the receipt mentions that this payment was made “in
advance” and that the payment was made “by hand”, i.e. in cash, which the Claimant considers as
being absurd for such a high amount.
23. Furthermore, the Claimant underlined that the amount of EUR 30,000 would have been paid on 12
January 2019, which is even ten days before the addendum was signed.
24. The Claimant provided a signed a declaration wherein he stated the following: “I have signed no
other documents than the Professionnel Football Player Temporary Transfer Agreement dated on 12
January 2019 and forced to sign the Amendment Agreement signed on 22 January 2019”.
25. The Claimant asked the Respondent to produce its bank statements proving that it has indeed made
the payments.
26. The Claimant therefore insisted on the fact that he never received the amount of EUR 30,000.
27. In addition, the Claimant made the following statement: “This payment which must have been made
on 12 January 2019 and which was never received by the Player was clearly the consequence of the
initial contract of 12 January 2019 and not of the Amendment Agreement with whom this kind of
amount ABSOLUTELY NOT correspond”.
28. The Claimant also denied having received the amount of EUR 1,090 on 27 March 2019 as well as
the authenticity of his signature.
29. After FIFA’s request for the originals of the payment receipts, which the Respondent provided, the
Claimant made some further unsolicited comments, alleging that the receipts are undated and that
it is not clear to which payment obligation the alleged payment refers to. The Claimant requested an
oral hearing and for FIFA to verify if those payments are mentioned in TMS.
II. CONSIDERATIONS OF THE DRC JUDGE
1. First, the DRC judge analysed whether he was competent to deal with the matter at hand. In this
respect, he took note that the present matter was submitted to FIFA on 10 June 2020. Consequently,
the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (edition June 2020; hereinafter: Procedural Rules) are applicable to the matter at hand (cf.
art. 21 of the Procedural Rules).
2. Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (edition August 2020) he is competent to deal with
the matter at stake, which concerns an employment-related dispute with an international dimension
between a Belgian player and a Turkish club.
3. Furthermore, the DRC judge analysed which regulations should be applicable as to the substance of
the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the
Regulations on the Status and Transfer of Players (edition August 2020), and considering that the
present claim was lodged on 10 June 2020, the June 2020 edition of said regulations (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4. The competence of the DRC judge and the applicable regulations having been established, the DRC
judge entered into the substance of the matter. In this respect, the DRC judge started by
acknowledging all the above-mentioned facts as well as the arguments and the documentation
submitted by the parties. However, the DRC judge emphasised that in the following considerations
he will refer only to the facts, arguments and documentary evidence, which he considered pertinent
for the assessment of the matter at hand.
5. On 12 January 2019, the parties concluded a loan agreement according to which, during the time
of the loan, the Respondent will pay the Claimant a total remuneration of EUR 180,000, payable in
six instalments of EUR 30,000 each, as follows:
EUR 30,000 as advance payment;
EUR 30,000 on 31 January 2019;
EUR 30,000 on 28 February 2019;
EUR 30,000 on 31 March 2019;
EUR 30,000 on 30 April 2019 and
EUR 30,000 on 31 May 2019.
6. Furthermore, on 22 January 2019, the Claimant and the Respondent signed an addendum to the
agreement.
7. Clause 1 of the addendum provided:
“The article 3 of the Loan Contract titled “Payments and Special Provisions” dated 12.01.2019 has
been amended as written below:
The parties agreed that Club will pay to the player in the amount of net EUR 180,000 as match
bonus payment, this amount will be paid in equal instalments, it is calculated by the amount divided
into 17 games which is announced by the Turkish Football Federation for the second half of the
season 2018/2019. The Player undertakes to release the club for all guarantee fee which is stated
in loan contract. For this reason, the Player´s guarantee fee is changed as match bonus fee which
is conditional fee as below:
The Player will be entitled to receive the full amount which is EUR 10,588.23 if he starts to the
match with first 11
The Player will be entitled to receive 100% of per match bonus which is EUR 10,588.23 –if he
joins to match from the bench afterwards;
The Player will be entitled to receive 100% of per match bonus which is EUR 10,588.23 –if he
is in the match squad but not played in the match;
The Player will not be entitled to receive any amount if he is not in first 18 squad of the match.”
8. The parties are in disagreement with respect to the amounts due to the Claimant under the
agreement and/or the addendum. Indeed, the Claimant deems that he was entitled to a guaranteed
amount of EUR 180,000 over the 6-month period of the loan with the Respondent. The Claimant
underlines that the addendum is to be understood as guaranteeing an amount of EUR 180,000 to
him but points out that the part of clause 1, which refers to a “conditional fee” must be considered
as potestative.
9. The Claimant, moreover, held that he had only been fielded in 3 matches during the 6 month period
and that the Respondent decided to side-line him with the sole purpose of not paying him any
remuneration. The Claimant highlighted that he had not even received the amount of EUR 31,764.69
for the three matches played.
10. The Respondent, for its part, categorically denied that the amount of EUR 180,000 constituted a
guaranteed fee and rather stated that the Claimant was entitled to a payment per match played. The
Respondent pointed out that the Claimant had agreed to the terms of the addendum on his own
free will and held that, therefore, clause 1 of the addendum is not potestative.
11. Furthermore, The Respondent indicated that it had made two payments to the player, one of EUR
30,000 on 12 January 2019, and EUR 1,090 on 27 March 2019. The Respondent provided payment
receipts for these two payments bearing the Claimant’s signature, and insisted that the Claimant had
chosen not to make any mention of those payments in bad faith.
12. With respect to the receipts provided by the Respondent totalling EUR 31,090, the Claimant denied
having received this amount and challenged the authenticity of the two receipts. Indeed, the
Claimant stated that he had never signed any other documents than the agreement and the
addendum.
13. In lights of the parties’ diverging position in this matter, the DRC Judge determined that he must
answer the following question:
i. Does the addendum provide for a guaranteed fee of EUR 180,000 or for a per match fee
up to EUR 180,000 ?
ii. If the addendum provides for a per match fee, is such clause valid ?
iii. Are there any outstanding amounts due to the Claimant following the expiry of the
employment relationship ?
i. The nature of the payments due to the Claimant under the addendum
14. With regard to the nature of the payments due to the Claimant under the addendum, the DRC Judge,
relying on the contents of clause 1 of the said document, concluded that the wording of the clause
is quite clear and detailed as to the Claimant’s financial entitlement.
15. Indeed, the DRC Judge’s understanding of the clause is that it establishes a per match bonus payment
due to the Claimant up to EUR 180,000, divided in 17 matches. The amount of each bonus depends
as to whether the player is a part of the 11 players starting the match, if he joins the match from the
bench, if is part of the match squad but does not play in the match (in all three cases the Claimant
would receive a EUR 10,588.23 per match fee) or if he is not part of the squad of 18 (in which case
the Claimant would not receive any amount for the match in question).
16. The DRC Judge also noted that the clause mentions the following: “The Player undertakes to release
the club for all guarantee fee which is stated in loan contract” and “the Player´s guarantee fee is
changed as match bonus fee”.
17. In view of the above, the DRC Judge concluded that the clause in question provided for a bonus
scheme, according to which the Claimant’s payments were conditional to his participation in the
squad of 18 for each match.
ii. The validity of clause 1 of the addendum
18. Having concluded that clause 1 of the addendum provides for a conditional fee depending on the
Claimant’s participation in each match of the league, the DRC Judge went on to analyse the validity
of such clause.
19. In this regard, the DRC Judge finds that the clause is indeed potestative. The decision to line up a
player in a match is usually left fully to the discretion of the club. As such, a player has no influence
on the decision to field him or not in a specific number of matches in the relevant season.
20. The DRC Judge, referring to its well-established jurisprudence in this regard, highlighted that, in
general, potestative clauses, i.e. clauses which contain obligations whereby the fulfilment of
contractual obligation is conditional upon a particular event which one party entirely controls, cannot
not be applied. Such clauses limit the rights of the other contractual party in an excessive manner.
Indeed, a literal application of clause 1 of the addendum would lead in a situation where the Claimant
would have possibly committed to work for free. The DRC Judge also noted that it remains
uncontested that the Claimant offered his services to the Respondent during the entire loan period.
21. In view of the above, the DRC Judge concluded that clause 1 of the addendum is not valid. Indeed,
as previously mentioned, the Respondent was in total control of the decision to include the Claimant in the squad of 18 or not, which left the Claimant at an unfair disadvantage. In this regard, the DRC
Judge underlined that it is irrelevant whether the Claimant had accepted the clause or not.
22. The above conclusion led the DRC Judge to establish that the Claimant was in fact entitled to receive
the total amount of EUR 180,000 as remuneration.
iii. The Claimant’s claim for outstanding remuneration
23. In light of the conclusion in par. II. 21 and II. 22 above, the DRC Judge analysed the Claimant’s claim
for outstanding remuneration.
24. The Claimant claims that he has not received any amounts from the Respondent under the addendum
and therefore claims the amount of EUR 180,000 plus interest.
25. The Respondent, on the other hand, alleged having proceeded to two payments to the Claimant, i.e.
one payment of EUR 30,000 on 12 January 2019 and another payment of EUR 1,090 on 27 March
2019. In this regard, the Respondent provided two receipts which bear what appears to be the
Claimant’s signature.
26. The Claimant, however, challenged the authenticity of the said two receipts and declared that he
had never signed any other documents than the agreement and the addendum.
27. In this context and as a preliminary remark, the DRC underlined that, as a general rule, FIFA's deciding
bodies are not competent to decide upon matters of criminal law, such as the ones of alleged falsified
signature or document, and that such affairs fall into the jurisdiction of the competent national
criminal authority.
28. In continuation, the DRC Judge recalled that, according to art. 12 par. 6 of the Procedural Rules, all
documentation remitted shall be considered with free discretion. Thus, the DRC Judge focused his
attention on the receipts as well as on the other documents on file containing the Claimant’s
signature. In this regard, the DRC Judge pointed out that the alleged original version of the second
contract was provided by the Claimant.
29. After a thorough analysis of the various documents on file, in particular the employment contract
signed with Sivasspor, the agreement and the addendum, as well as the contested receipts, the DRC
Judge, while comparing the relevant signatures, had no other option but to conclude that, for a
layman, it is not possible to establish with certainty if the receipts are forged or not. In this regard,
the DRC Judge emphasised that, without a decision from a competent authority establishing that the
receipts are forged, he must consider these were validly signed by the Claimant.
30. In view of the above, the DRC Judge established that the Claimant had received an amount of EUR
31,090 from the Respondent.
31. In continuation, the DRC Judge recalled its conclusion that the Claimant was in fact entitled to receive
the total amount of EUR 180,000. Considering that the Respondent has only paid the Claimant an
amount of EUR 31,090, such amount shall be deducted from the amount of EUR 180,000.
32. In conclusion, the Respondent remains in default of EUR 148,910 towards the Claimant. Therefore,
the Respondent must pay the Claimant the amount of EUR 148,910 plus 5% interest per annum as
from 1 June 2019, i.e. one day following the expiry of the agreement, until the date of effective
payment. Indeed, the DRC Judge deems that the payment of the Claimant’s remuneration should
have been made at the latest on the expiry date of the agreement, i.e. 31 May 2019.
33. The DRC Judge concluded its deliberations by establishing that the claim of the Claimant is partially
accepted. Any further claims of the Claimant are rejected.
III. DECISION OF THE DRC JUDGE
1. The claim of the Claimant, Cyriac Gohi Bi Zoro, is partially accepted.
2. The Respondent, Giresunspor Kulübü, has to pay to the Cyriac Gohi Bi Zoro, the following
amount:
- EUR 148,910 as outstanding remuneration plus 5% interest p.a. as from 1 June 2019 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 psdfifa@fifa.org, 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 from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. 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).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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 | psdfifa@fifa.org | T: +41 (0)43 222 7777