Tout Puissant Mazembe v. Ibrahima Diaby

At a glance

Parties

Tout Puissant Mazembe (DR Congo football club) v. Ibrahima Diaby (Ivorian professional footballer)

Case no.

CAS 2022/A/8899

Forum and rules

Court of Arbitration for Sport, appeal procedure under the CAS Code; FIFA regulations applied, with Swiss law as subsidiary law

Treaty

Not a treaty case. Employment contract of 26 January 2021; FIFA Regulations on the Status and Transfer of Players (RSTP)

Tribunal

Prof. Petros C. Mavroidis (President), Alexander McLin, Jaime Castillo

Sector

Professional football

Outcome

Appeal dismissed (18 August 2023). The FIFA DRC decision of 24 March 2022 was confirmed.

Amount

Before the FIFA DRC, the Player claimed USD 7,800 in unpaid pay, USD 345,000 in compensation and USD 5,000 in legal costs; the Club counterclaimed USD 5,000,000 (alternatively USD 128,666) and USD 1,130. The DRC awarded USD 5,300 plus 5% interest from 6 September 2021 and USD 285,000 plus 5% interest from 30 September 2021. CAS confirmed both amounts.

The dispute

Ibrahima Diaby signed a five-season contract with TP Mazembe running from 1 February 2021 to 31 May 2026, at a fixed salary of USD 5,000 a month. Under Article 5.2 of the contract, the salary fell by 50% if he started fewer than 80% of official matches in a season. The Club paid only half his salary, never fielded him, and in July 2021 asked him to sign an "attestation de jeu" that would have ended the contract; he refused. After he went home to Côte d'Ivoire, he sent written demands for unpaid salary. The Club sent him return flight tickets less than 48 hours before departure and suspended his salary, and on 16 September 2021 he terminated the contract for just cause. The FIFA DRC found that he had just cause and awarded him unpaid salary and the residual value of the contract. The Club appealed. It argued that the reduced salary applied, that it had paid the arrears by SWIFT on 7 September 2021, that the Player's bank statement was forged (it had filed a criminal complaint in Lubumbashi), and that the Player was absent without justification and owed a contractual penalty.

Key holdings

1. The request to stay the appeal until the Lubumbashi criminal proceedings ended was rejected. Under Article 186(1bis) of Swiss PILA there were no serious reasons for a stay: all the evidence filed with the criminal complaint was in the CAS file. The Club also never reported any progress in the criminal case, which suggested the proceedings may have been brought to cause delay. ¶¶ 73–77
2. The Club could not rely on the 50% salary reduction in Article 5.2. Under Article 156 of the Swiss Code of Obligations, a condition counts as fulfilled when a party prevents it in bad faith, and the Club never fielded the Player. His salary was therefore USD 5,000 a month. The February 2021 salary was also due, because his late arrival was caused by a Covid-19 infection and by a ticket error the Club admitted. ¶ 94
3. The Player was not in breach of contract. The Club tried to obtain a consensual termination, paid late and only in part despite formal demands, required his return on less than 48 hours' notice when his return had been set for 20 August 2021, and did not help him obtain a visa. On these facts the Player had just cause to terminate under both Article 14(2) and Article 14bis of the RSTP. ¶ 95
4. The Club did not prove that the arrears reached the Player before he terminated. A SWIFT confirmation proves only that a payment instruction was given, not that the funds were received. The Club's undated printout carried less weight than the Player's three bank documents, which showed receipt of CFA 8,184,540 on 16 September 2021. ¶ 97
5. A player who terminates for just cause is entitled to his positive interest, whether by analogy with Article 17 of the RSTP or under Article 337b of the Swiss Code of Obligations. The Panel saw no reason to depart from the DRC's finding that the contractual penalty was neither reciprocal nor proportionate. It confirmed the awards of USD 5,300 and USD 285,000 and dismissed the appeal. ¶¶ 100–103

Procedural history

1. 26 January 2021The Player and the Club sign a five-season employment contract.
2. 16 September 2021The Player terminates the contract with just cause and immediate effect.
3. 29 September 2021The Player files a claim with the FIFA Dispute Resolution Chamber; the Club counterclaims.
4. 16 November 2021The Club files a criminal complaint in Lubumbashi, alleging that the Player's bank statement was forged.
5. 24 March 2022The FIFA DRC partly accepts the claim, awarding USD 5,300 and USD 285,000; the reasoned decision is notified on 2 May 2022.
6. 18 May 2022The Club files its statement of appeal with CAS.
7. 9 September 2022The Panel refuses to stay the proceedings.
8. 20 October 2022Hearing held by video-conference.
9. 18 August 2023Award: appeal dismissed and the DRC decision confirmed.

Tribunal, counsel and experts

Decided by

• Petros C. Mavroidis President, Panel
• Alexander McLin Co-arbitrator, Panel — appointed by the claimant (appointed after Andrew de Lotbinière McDougall declined his nomination)
• Jaime Castillo Co-arbitrator, Panel — appointed by the respondent

For the claimant

Grégory Ernes · Hadrien Flamant · Sheena Belmans · Sven Demeulemeester

For the respondent

FIFPro · Derby Avocats

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Keywords

• TP Mazembe
• just cause
• FIFA RSTP
• Article 14bis RSTP
• Article 14(2) RSTP
• abusive conduct
• outstanding salaries
• contractual stability
• stay of proceedings
• Article 186(1bis) PILA
• criminal proceedings
• forged bank statement
• SWIFT confirmation
• Article 156 CO
• potestative clause
• Article 337b CO
• positive interest
• FIFA Dispute Resolution Chamber

Summary generated with AI from the published documents — refer to the award for the authoritative text.