F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 8 May 2020
Decision of the
Dispute Resolution Chamber
passed on 8 May 2020,
in the following composition:
Clifford Hendel (USA&France), Deputy Chairman
Alexandra Gómez Bruinewoud (Uruguay & The Netherlands), member
Stefano La Porta (Italy), member
on the claim presented by the player,
Dieudonné Mbokani, Congo DR
represented by Mr Guy San Bartolome Sarrey
as Claimant
against the club,
Dynamo Kyiv, Ukraine
as Respondent
regarding an employment-related dispute between the parties
I. Facts of the case
1. On 28 June 2013, the Congolese player, Dieudonné Mbokani (hereinafter: the player or the Claimant) and the Ukrainian club, Dynamo Kyiv (hereinafter: the club or the Respondent) signed an employment contract (hereinafter: the contract) valid as from the date of signature until 15 June 2017.
2. In accordance with art. 2.2 par.4 of the contract, the player was “to appeal urgently to the doctor of the team in case of either sickness or obtaining the professional injury or everyday injury in order to determine the appropriate forms and methods of treatment.”
3. On 28 June 2018, the player and the club signed an additional agreement (hereinafter: the agreement) in accordance with which the player was entitled to:
“Art. 1 The Club/Company undertakes to pay remuneration to the Player in the total amount of EUR 1,600,000 (one million six hundred thousand) , net, per contractual year (the period from 1 July till 30 June next year) in 11 (eleven) monthly payments per year (i.e. no payment in January).
1.2. Besides, the Club/Company shall pay a signing fee in the amount of 500'000 (five hundred) Euros, net, per contractual year. payable as follows:
1.2.1) first contractual year - in single installment payable by 10 July 2013 at the latest:
1.2.2) second contractual year - in single installment payable by 1 September 2014 at the latest;
1.2.3) third contractual year - in single installment payable by 1 September 2015 at the latest;
1.2.4) fourth contractual year - in single installment payable by 1 September 2016 at the latest
The above signing fee shall be paid to the Player only in event that the latter is bound by the appropriate labor contract with FC Dynamo Kyiv as per the appropriate payment date”
4. In accordance with art. 1.3 of the agreement, “The Company undertakes to pay to the Player a minimum of EUR 300,000 net. of bonuses under the Article 2 in case the Player participates in more than 50% of the official matches (in the Premier League of Ukraine and UEFA club competitions matches) of the first team of Dynamo (as a player starting an official match} of such sporting season. In practical terms, if during the contractual year the Player receives less than 300'000 (three hundred thousand) Euros of bonuses under the Article 2, the Company undertakes to pay such a difference (if any) to the Player upon the end of that contractual year” .
5. In addition, in accordance with art. 4 of the agreement, the player was entitled to the following: “the company shall provide the player with suitable first class furnished service apartments with a renting fee of up to USD 5,000 per month. […]”.
6. The agreement further provided in its art. 6 that:
“in addition to the established general penalty sanctions applied to the players of the club for violations of labor discipline and sports regime, the following penalty sanctions may be applied to the player:
6.1 for failure of the player to comply with the team schedule, penalty in amount of EUR 20,000 for every missed day of training session (including for every incomplete day)
[…]
6.4 for unauthorized leaving/departure from the team training and/or residential ground penalty in amount of EUR 50,000 per case
[…]
In case of the abovementioned violations, corresponding amounts of penalties shall be withdrawn from payments to the player under the present agreement”.
7. On 30 August 2015, the player and the club signed an additional agreement (hereinafter: the additional agreement) in accordance with which the contract duration was extended until 31 May 2018 with the same terms as previously mentioned.
8. On 21 March 2018, the club informed the player that disciplinary proceedings were opened against him as he was allegedly 7 days late to a training camp in January 2018; he was informed that he had until 28 March 2018 to provide his defence on these accusations.
9. On 4 April 2018, as a result of the aforementioned proceedings, the club issued a fine of EUR 110,000 to be deducted from the player’s salary of April 2018.
10. On 28 May 2019, the player put the club in default arguing that according to the agreement, he was entitled to a monthly salary of EUR 145,000 and a monthly rent of USD 5,000 but that for March 2018 he only received EUR 50,000 and for April 2018 no amount has been received. He further held that for the month of May 2018, he paid his own rent. The player gave until 8 June 2018 for the club to pay him the outstanding amount of EUR 239,500 and USD 5,000.
11. On 30 May 2018, the player reiterated his default arguing that he received less in April 2018 than what was claimed in his 1st default. He gave the same deadline than before, requesting the total amount of EUR 204,500 (March 2018: EUR 94,500; April 2018: EUR 110,000) and USD 5,000.
12. On 31 May 2018, the club wrote to the player arguing that it was starting “international disciplinary investigation about [the player] violation of the contractual duties provided by the employment contract” arguing that the player had been absent for 14 days which was not the player’s first violation of the contract.
13. On 1st June 2018, the player reiterated his default notice arguing that his previous default notice remained unanswered, the player argued that for the absence he left the country on 20 May 2018 as he was not selected by the coach to play in the last game of the season. The player argued that the mention of disciplinary proceedings when the player was claiming outstanding toward the club is not random.
14. On 5 June 2018, the player reiterated his default amending it, and now claiming the total amount of EUR 255,500 corresponding to EUR 500 for March 2018, EUR 110,000 for April 2018, EUR 145,000 for May 2018 and USD 5,000 for the rent. He further requested EUR 300,000 corresponding to art. 1.3 of the agreement. He gave the club a deadline until 15 June 2018. On 16 June 2018, the player amended his request, adding the rent of June 2018 and gave until 25 June 2018 for the club to remedy the default.
15. On 18 June 2018, the club issued a fine against the player of EUR 60,000 to be deducted from his May 2018 salary regarding his absence of 14 days.
16. On 27 June 2018, the club wrote to the player arguing that he was not entitled to the bonus of EUR 300,000 (art.1.3 of the agreement) since he should have played 50% of the official matches in the starting team. The club argued that the player played only 45% of the official matches. As to the salaries, it claimed that the EUR 500 for March were received in local currency and in cash in the middle of April and that April’s salary had been paid after a deduction of EUR 110,000 corresponding to a fine. For the salary of May, the club held that due to his absence, it could have imposed on him a fine of EUR 110,000 but reduced it to EUR 60,000 and that the residual part would be transferred to the player.
17. On 8 July 2018, the player replied to the club that he was entitled to the bonus and did not understand the calculation of the club for his participation. On the fines, the player held that the decisions of 4 April and 18 June 2018 had not been communicated to him and that the fines were disproportionate (75% of his salary for April and 45% of his salary for May). He reiterated his default on 16 July 2018.
18. On 13 July 2018, the player received EUR 85,000 corresponding to amounts due under the salary of May 2018
19. On 20 July 2018, the club maintained his argumentation that the fines were duly communicated to the player and were fair.
20. On 23 July 2018, the player lodged a claim against the club in front of FIFA for outstanding remuneration requesting the total amount of EUR 427,413.88 and USD 5,000 plus interest as of the due dates, corresponding to the following:
EUR 500 as residual part of the salary of March 2018 plus 5% interest as from 1 April 2018;
EUR 110,000 as residual part of the salary of April 2018, plus 5% interest as from 1 May 2018;
EUR 60,000 as salary of May 2018, plus 5% interest as from 1 June 2018;
USD 5,000 as rent for the month of May 2019, plus 5 % interest as from 1 June 2018 (he converted the salary in EUR to EUR 4,309.58);
EUR 256,913.88 in application of art. 1.3 of the Agreement, plus 5% interest as from 1 June 2018.
21. In his claim, the player held that despite his numerous default notices, he only received the amount of EUR 85,000.
22. On the fines, the player held that he was notified of those fines on 27 June 2018 a month after the end of the contract, and too late for him to be able to contest those fines. The player added that the fines did not provide for a possibility of an appeal in front of an independent Disciplinary Committee.
23. The player underlined that those fines were disproportionate and excessive.
24. On the fine of 4 April 2018 (EUR 110,000), the player held that the fine was imposed on events that occurred more than 2 months prior, and that the evidence of those events is not sufficiently substantiated.
25. On the bonus of EUR 300,000, the player held that during the season 2017/2018 he played 23 official matches out of 36 as follows:
Premier League 16/22
Europa League 3/10
Champions League qualifiers 2/2
Europa League qualifiers 2/2
26. In reply to the claim of the player, the club firstly argued that during the course of the contracts, the player had been at fault numerous times, leading to the club loaning the player to Norwich City FC.
27. The club held that the player was supposed to return to the club for winter training on 29 January 2018 but returned without authorization on 4 February 2019. The player held that he was injured in his claim but at that time never informed the club. On 21 March 2018, the club requested an explanation as to his late arrival, but to no avail.
28. He was then absent as of 18 May 2018, again, without authorization, according to the club.
29. The club held that the claim is only based on the fines that were rightfully deducted from the player’s income and a bonus that was not due to him. The club further argued that the amount claimed for March 2018 had been paid in cash to the player.
30. On the bonus, the club explained that the bonus was only due if the player “participates in more than 50% of the official matches” and more accurately if the player is “starting an official match”. In this regard, the club held that the player started in 45.65% of the official matches as follows:
15 / 32 Premier League
2/2 UEFA Champions League qualifiers
2/2 UEFA Europa League qualifiers
2/10 UEFA Europa League group stage
31. On the rent requests, the club held that the player failed to provide evidence that he paid the rent of USD 5,000.
32. On the amount of EUR 500 for March salary claimed by the player, the club maintained that this amount had been paid in local currency and in cash.
33. On the fines, the club held that the disproportionality argument raised by the player is clearly not applicable in the present case, as none of the fines surpassed the salary of the player. The club held that unless the fine is manifestly disproportionate, it should be accepted as appropriate if agreed by the parties.
34. As to the process of application of fines, the club held that the player never complained in the past about the application process, even when he was subject to fines in 2015.
35. On the application process, the club held that the contract provided for the application of the Labor Code of Ukraine in its art. 1.1) and based its application of fine process on the Labor Code of Ukraine which requires that the player is asked for explanation about the reasons of the disciplinary breach.
36. The club held that the player was aware of the fine of April 2018, but refused to sign the order of the fine. It further held that for the second fine, the player could not sign the order as he had already left the country.
37. On the argumentation of the player that he could not appeal the orders (fines), the club held that he could have done it in front of the FFU Dispute Resolution Chamber.
38. Specifically on the fine of 4 April 2018, the club held the following:
the player was late in coming back to the training (7 days absence), it is not contested according to the club,
he was requested to provide his explanation on 21 March 2018 but did not and as such waived his right to be heard and to defend himself.
The order was issued on 4 April 2018 and the player asked to sign it, which he allegedly refused to do.
The player failed to prove he had a valid reason to be absent (the club arguing that the document from the rehabilitation center does not mention that the player could not do all the exercises mentioned from Kyiv, and those were not agreed by the club’s doctor contrary to art. 2.2 par.4 of the contract)
39. On the fine of 18 June 2018, the club held the following:
The player left Ukraine on 19 May 2018 and was absent until the end of the contract;
The player held that he left as he was not selected to play the last match, this is not a sufficient reason, as according to the club, he was not selected because he was absent.
2 weeks absence;
On 31 May 2018, he was requested to provide explanations as to the absence, but only replied on 1 June 2018 that he was absent as he was not selected to play. He used his right to be heard by replying on 1 June.
On 27 June 2018, the order was communicated to the player;
The club could have imposed a more severe fine but limited it to EUR 60,000 representing only 3 days of absence.
He could have appealed it in front of the FFU DRC.
40. In his replica, the player contested the 2 fines of 4 April and 18 June 2018 are unilateral decisions of the board of the club, without any appeal possibilities, and which were not communicated to the player before 27 June 2018.
41. He reiterated that the fines are excessive and disproportionate.
42. On the fine of 4 April 2018, the player held that he was absent due to his rehabilitation.
43. On the fine of June 2018, the player held that said fine was imposed in retaliation to the default notices of the player against the club.
44. In its last submission, the club reiterated its previous arguments, underlining that the player in his replica did not contest the evidence of payment of the EUR 500 for March 2018.
II. Considerations of the Dispute Resolution Chamber
1. First, the Dispute Resolution Chamber (hereinafter also referred to as the 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 submitted to FIFA on 23 July 2018. Consequently, the June 2018 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. article 21 of the Procedural Rules).
2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (2020), 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 Congolese player and a Ukrainian club.
3. Furthermore, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players 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 (edition 2020) and considering that the present claim was lodged in front of FIFA on 23 July 2018, the June 2018 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.
4. The competence of the Chamber and the applicable regulations having been established, and entering into the substance of the matter, the Chamber started by acknowledging the above-mentioned facts as well as the documentation contained in the 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.
5. In this respect, the Chamber first acknowledged that the Claimant and the Respondent signed an employment contract valid, as from 28 June 2013 until 31 May 2018 following the signature of the additional agreement extending its duration from 15 June 2017 to 31 May 2018. The Chamber further acknowledged that the Claimant and the Respondent had signed the agreement entitling the Claimant to a total remuneration of EUR 1,600,000 payable in 11 instalments per year, without any payment in January.
6. The Chamber then reviewed the claim of the Claimant who requested outstanding remuneration in the total amount of EUR 427,413.88 and USD 5,000 plus interest as of the due dates, corresponding to the following:
EUR 500 as residual part of the salary of March 2018 plus 5% interest as from 1 April 2018;
EUR 110,000 as residual part of the salary of April 2018, plus 5% interest as from 1 May 2018;
EUR 60,000 as salary of May 2018, plus 5% interest as from 1 June 2018;
USD 5,000 as rent for the month of May 2019, plus 5 % interest as from 1 June 2018 (he converted the salary in EUR to EUR 4,309.58);
EUR 256,913.88 in application of art. 1.3 of the Agreement, plus 5% interest as from 1 June 2018.
13. The Chamber took note of the argumentation of the Claimant who held that several amounts had not been paid to him despite default notices and that he was only made aware of the fines on 27 June 2018 a month after the end of the contract. The Chamber duly took note that the Claimant further sustained that the fines were disproportionate and excessive and that he did not have the possibility to appeal the fines in front of an independent disciplinary committee. Moreover, the Chamber noted that the Claimant was also requesting a bonus arguing that it was due to him as he played 23 official matches out of 36.
14. The member of the DRC then observed that the Respondent held that there is no outstanding remuneration due to the Claimant and further argued that the fines were rightfully imposed on the Claimant, that the Claimant had the possibility to provide his defence prior to the imposition of the fines, and that the fines were not disproportionate.
15. In this respect, taking into account the positions of the parties, the members of the Chamber determined that, since in principle the Claimant would be entitled to all the amounts he requested in accordance with the contract, the main issue at stake was to evaluate if the Respondent had to pay the requested amounts directly to the Claimant, or if it had valid reasons not to.
16. In this respect, the Chamber observed that the amounts requested by the Claimant could be separated into four categories:
• the bonus in accordance with art. 1.3 of the agreement;
The rent contribution for May 2018;
EUR 500 as remaining part of the salary of March 2018;
• The outstanding salaries which were not paid as a consequence of the fines imposed as well as the outstanding bonus claimed.
17. With regards to the bonus, the Chamber noted that according to the Claimant he had participated in 23 official matches out of 36 and that as such he had participate in more than 50% of the official matches and was therefore entitled to that bonus.
18. The Chamber noted that on its part, the Respondent held that in order for the bonus to be due, there was to cumulative conditions, the player needed to have played in more than 50% of the official matches, while being part of the starting team.
19. On this topic, the DRC turned its attention to the wording of art. 1.3 of the agreement in accordance with which “The Company undertakes to pay to the Player a minimum of EUR 300,000 net. of bonuses under the Article 2 in case the Player participates in more than 50% of the official matches (in the Premier League of Ukraine and UEFA club competitions matches) of the first team of Dynamo (as a player starting an official match} of such sporting season. In practical terms, if during the contractual year the Player receives less than 300'000 (three hundred thousand) Euros of bonuses under the Article 2, the Company undertakes to pay such a difference (if any) to the Player upon the end of that contractual year”.
20. Taken into account the wording of the abovementioned clause, the Chamber was of the opinion that in order for the bonus of art. 1.3 to become due to the player, he would need to demonstrate that he had played in more than 50% of the official matches of the club as part of the starting team. The DRC deemed that both conditions were cumulative.
21. In this regard, the Chamber found it important to recall the content of art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. In this regard, the Chamber carefully considered the evidence before it and particularly noted that the evidence provided by the Claimant did not corroborate that the player had been part of the starting team for more than 50% of the official match. On the other hand, the evidence provided by the Respondent seemed to indicate that the Claimant had not participated as part of the starting team to more of 50% of the official matches of the club.
22. Consequently, the Chamber was of the opinion that the bonus under art. 1.3 of the agreement was not due to the Claimant.
23. Now turning its focus on the request of the Claimant regarding the rent contribution of May 2018, the Chamber noted that according to the Claimant, the Respondent had the obligation to pay him USD 5,000 as he had to pay himself the rent for May 2018 in the absence of payment by the Respondent.
24. The Chamber noted that on its part, the Respondent held that the Claimant had failed to provide conclusive evidence that it paid the rent instead of the Respondent and contested the evidence provided by the Claimant.
25. Along this line, the Chamber drew its attention to the wording of art. 4 of the agreement in accordance with which, the Respondent “shall provide the player with suitable first-class furnished service apartments with a renting fee up to USD 5,000 per month”.
26. Once again, the Chamber carefully considered the evidence before it in accordance with art. 12 par.3 of the Procedural Rules, and took note that the Claimant had provided what he considered to be proof that he paid the rent for May 2018. In this regard, the Chamber was forced to conclude that the evidence provided was not fully legible and did not contain the name of the player.
27. The Chamber found it important to recall the claim of the Claimant in this regard, and noticed that the Claimant was requesting the reimbursement of amounts he claimed to have paid, namely USD 5,000. In this context, the Chamber was of the opinion that since the Claimant was requesting a reimbursement, the burden of proof to provide evidence that said payment had been made by him, lied on his shoulders. Taking into consideration the above, and in particular the fact that the evidence provided by the Claimant was not fully legible and did not contain the name of the Claimant and was contested by the Respondent, the Chamber took the view that the Claimant had not sufficiently substantiated his request.
28. Therefore, the DRC concluded that the request pertaining to the reimbursement of USD 5,000 corresponding to the rent of May 2018, had to be rejected.
29. In continuation, the Chamber took note of the request of the Claimant as to the EUR 500 claimed as residual part of the salary of March 2018, and especially that the Claimant deemed that that amount was outstanding.
30. On this point, the Chamber noted that the Respondent held that that amount had been paid in cash and in local currency and that as such, it was not outstanding.
31. The DRC observed that the Respondent had provided a payment slip allegedly signed by the Claimant. At this stage, the Chamber recalled that following the reply of the Respondent in which it had provided the payment slip, the Claimant in his replica had not contested said proof of payment and that the Claimant did not mention this request for EUR 500 in his last submission.
32. To the point that the DRC was of the firm opinion that the Respondent had sufficiently substantiated his allegation, especially taking into account the absence of a contestation of the proof of payment from the Claimant.
33. Consequently, the Chamber rejected the claim of the Claimant regarding the EUR 500.
34. Regarding the outstanding salaries claimed by the Claimant, namely part of April 2018 and part of May 2018, the Chamber observed that by means of a decision dated 4 April 2020 and a decision dated 18 June 2018, the Respondent imposed two salary deductions on the Claimant for a total amount of EUR 170,000.
35. On that topic, the Chamber considered that the main issue at stake is to determine whether the salary deductions imposed on the Claimant by the Respondent, had been duly imposed and in that case if the amounts deducted were reasonable.
36. In particular, the Chamber found it relevant to bear in mind that the facts leading to the imposed deductions were not contested by the Claimant. The facts related to the imposition of the salary deductions are the following:
• The Claimant missed 7 days of training between 29 January and 4 February 2018 included;
• the Claimant missed 14 days of training between 18 May 2018 until the end of the contract, i.e. 31 May 2018.
37. The DRC however noted that the Claimant considered that he had good reasons to be absent in both occasion for the following reasons:
• For the period between 29 January and 4 February 2018, the Claimant held that he was undergoing rehabilitation in Belgium and provided a schedule of rehabilitation for the player from 22 December 2017 to 2 February 2018;
• For the period between 18 May and the end of the contract (31 May 2018), the Claimant held that he left the country as he had not been selected to play in the last match of the season.
38. The Chamber further recalled the objections of the Respondent for those absences and in particular the argument of the Respondent that it did not agree to the rehabilitation of the Claimant in Belgium, and deemed that said rehabilitation could have taken place in Ukraine. The Respondent further deemed that the absence of selection for the last match of the season did not authorize the player to leave the club prior to the end of the contract.
39. On this point, the Chamber was of the opinion that it is uncontested that the Claimant had been absent on both occasions. On the issue of determining if those absence were for valid reasons, the Chamber deemed that the Claimant did not provide sufficient evidence that for the first absence, he had duly informed the Respondent of his absence and had duly been authorized to get the rehabilitation in Belgium.
40. On the second absence, the Chamber was of the opinion that the reason invoked by the Claimant to leave the country prior to the end of the contract, i.e. not been selected for the last match of the season, could not be taken into account. The Chamber deemed that unless the contract explicitly provided for such event or in case of express authorization of the Respondent, the Claimant had to stay in the club and provide services for the Respondent until the last day of validity of the contract, in this case 31 May 2018.
41. Consequently, the Chamber was of the unanimous opinion that the Claimant had no valid reason to be absent on both occasions.
42. Then the Chamber focused its attention on determining if the salary deductions had been duly imposed. With all of the previous considerations in mind, the Chamber deemed it important to highlight that the remuneration that any player receives from his club is paid in exchange of a service rendered. And that salary deductions cannot be made to offset outstanding debt. Keeping this logic in mind, the Chamber found it appropriate for a club that had sufficiently proven that his player had been absent from work and as such did not render his services without any valid reason, that those days would not be gratified with undue remuneration.
43. With the case at hand, the Chamber reiterated that the Claimant had been absent on both occasions (7 days end of January beginning of February 2018 and 14 days in May 2018), without any valid reason nor express authorization from the Respondent. The Chamber further noted that the agreement provided for penalties in the form of salary deductions for those events in its art. 6. And that said agreement had been duly signed by the Claimant.
44. The DRC was therefore of the opinion that the Respondent was in its right not to pay the Claimant for the days in which he did not render any services in favour of the Respondent.
45. The DRC then took note of the argument of the Claimant according to whom he had not been made aware of the salary deductions prior to 27 June 2018, i.e. after the natural term of the contract.
46. In this context, the Chamber found it important to recall once more the content of art. 12 par. 3 of the Procedural Rules and in this context noted that on 21 March 2018, the Respondent wrote to the Claimant informing him about the opening of disciplinary proceedings and requesting the explanation of the Claimant on the alleged absence. The DRC noted that the Respondent provided the letter as well as the email addressed, among others, to the counsel of the Claimant, and considered that as such, the Respondent had sufficiently substantiated its allegation that it had warned the Claimant.
47. Moreover, the Chamber noted that on 31 May 2018, the Respondent had informed the Claimant of the opening of disciplinary proceedings regarding the absence of the Claimant at the end of the season and requested the comments of the Claimant in this regard, and noted that the Claimant had replied on 1 and 5 June 2018.
48. In this context, the DRC was of the opinion that the Claimant had been duly notified of the opening of disciplinary proceedings and had the possibility in both cases to provide his defence prior to the imposition of said penalties.
49. As pointed out previously by the Chamber, the Claimant does not contest the event leading to the fines, and he had the opportunity to defend himself prior to the decisions. As a result, the DRC concluded that the salary deductions had been duly imposed on the Claimant, without, at this stage, pronouncing itself as to the amounts related to these salary deductions.
50. Following this, the Chamber turned its attention to the salary deductions that had been imposed on the Claimant for the first one being an absence of 7 days and a salary deduction of EUR 110,000 and for the second one being an absence of 14 days and a salary deduction of EUR 60,000.
51. The DRC first analysed the salary deduction of EUR 110,000 imposed on the Claimant for an absence of 7 days. The Chamber noted that the decision of 4 April 2018 explained that this amount had been imposed in application of art. 6.1 of the agreement in accordance with which, each training missed will be sanctioned with a fine of EUR 20,000. Taken into account that the Claimant missed 7 trainings, he should have been fined EUR 140,000 but the Respondent choose to lower said salary deductions to EUR 110,000.
52. As to the second salary deduction of EUR 60,000 imposed on the Claimant for an absence of 14 days, the DRC noted that the decision of 18 June 2018 explained that in application of art. 6.4 and 6.1 of the agreement, he could have been fined up to EUR 110,000 but the Respondent had chosen to lower said fine to EUR 60,000.
53. To assess the amounts of the salary deductions, the Chamber found it important to consider the monthly salary of the Claimant. As such, the Chamber found that in accordance with the agreement, the Claimant was entitled to an annual salary of EUR 1,600,000 payable in 11 months and as such determined that the monthly salary of the Claimant was equivalent to EUR 133,333 and that equivalently, his daily remuneration would amount to EUR 4,444.
54. Taking into account all of the above, the Chamber found the amount of the first salary deduction excessive, since an absence of 7 training is equivalent to 80% of the Claimant’s monthly salary when the Claimant actually missed the equivalent of 20% of the month. As such, the DRC deemed that the Respondent was in its right not to pay the days in which the Claimant did not provide his services for the Respondent since, as previously raised by the chamber, the Claimant did not have any valid reason not to be present.
55. As such, the Chamber concluded that, for an absence of 7 days, the amount of EUR 31,108 had validly been deducted from the Claimant’s salary of April 2018. In addition, the Chamber deemed that the amount of EUR 78,892 had wrongfully been deducted from the salary of April 2018 of the Claimant and was therefore due to the Claimant.
56. With regard to the salary deduction of EUR 60,000 regarding an absence of 14 days during May 2018, the Chamber was of the opinion that the same logic had to be adapted with regard to the amount of this salary deduction. Following the same logic, the DRC deemed that an appropriate salary deduction would have amounted to EUR 62,216 for 14 days absence. However, the Chamber took note that the Respondent had itself chosen to lower the salary deduction to EUR 60,000 and deemed that as such, that amount was reasonable.
57. As such, the Chamber concluded that for an absence of 14 days, the amount of EUR 60,000 had validly been deducted from the Claimant’s salary of May 2018.
58. In consequence of all the foregoing, the members of the Chamber concluded that the Respondent had a valid reason to not pay the Claimant the amount of EUR 91,108.
59. For all the above reasons, the Chamber decided to partially accept the Claimant’s claim and determined that the Respondent, in accordance with the general legal principle of pacta sunt servanda, must pay him the total amount of EUR 78,892 corresponding to the residual part of the salary of April 2018.
60. In addition, taking into account the Claimant’s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. as of 1 May 2018 until the date of effective payment.
61. Furthermore, taking into account the consideration under number II./9. above, the DRC referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.
62. In this regard, the DRC pointed out 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 and for the maximum duration of three entire and consecutive registration periods.
63. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
64. Finally, the DRC recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.
65. The Dispute Resolution Chamber concluded its deliberations in the present matter establishing that any further claim lodged by the Claimant is reject.
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III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Dieudonné Mbokani, is partially accepted.
2. The Respondent, Dynamo Kyiv, has to pay to the Claimant the amount of EUR 78,892 plus 5% interest p.a. as from 1 May 2018 until the date of effective payment.
3. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amount mentioned under point 2 above.
4. Any further claim of the Claimant is rejected.
5. The Respondent shall provide evidence of payment of the due amount plus interest in accordance with point 2 above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).
6. In the event that the amount due plus interest in accordance with point 2 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 Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is not paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).
7. The ban mentioned in point 6 above will be lifted immediately and prior to its complete serving, once the due amount is paid.
8. In the event that the aforementioned sum plus interest 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 FIFA’s Disciplinary Committee for consideration and a formal decision.
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Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).
Note relating to the appeal procedure:
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne, Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: info@tas-cas.org / www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer