Skip to main content
International Arbitration Forum

Tout Puissant Mazembe v. Ousmane Diallo

Case summary

At a glance

Parties
Tout Puissant Mazembe (DR Congo football club), appellant, v. Ousmane Diallo (Ivorian professional footballer), respondent
Case no.
CAS 2022/A/8900
Forum and rules
Court of Arbitration for Sport, appeal procedure under the Code of Sports-related Arbitration; FIFA regulations, with Swiss law applying subsidiarily
Treaty
None. Employment contract of 26 January 2021; FIFA Regulations on the Status and Transfer of Players (RSTP)
Tribunal
Prof. Petros Mavroidis (President), Alexander McLin, Jaime Castillo (the site lists Despina Mavromati; the award names Petros Mavroidis)
Sector
Football; player employment contract
Outcome
Appeal dismissed; the FIFA Dispute Resolution Chamber decision of 24 March 2022 is confirmed (award of 18 August 2023).
Amount
Confirmed against the club: USD 7,500 in outstanding salary plus 5% interest, and USD 173,620 in compensation for breach of contract plus 5% interest from 30 September 2021. The club had counterclaimed USD 5,000,000 before FIFA and asked CAS for USD 74,170. The costs paragraphs are redacted in the published award.

The dispute

On 26 January 2021 Ousmane Diallo signed a five-season contract with TP Mazembe, running from 1 February 2021 to 31 May 2026, at a fixed monthly salary of USD 3,000. Article 5.2 cut the salary by 50% if he started fewer than 80% of official matches in a season. He played no match. On 2 July 2021 the club gave him a signed "attestation de jeu", which stated that under Article 2 of the contract he was leaving the club free of all commitments. He refused to sign it. The club then stopped paying him, and on 9 September 2021 he terminated the contract for just cause over unpaid salary, relying on default notices of 17 August and 1 September 2021. The FIFA Dispute Resolution Chamber (DRC) held that the club had terminated the contract without just cause on 2 July 2021 and awarded him salary and compensation. On appeal the club argued that the default notices were forged; it had filed a criminal complaint in Lubumbashi and asked for a stay of the CAS proceedings. It also argued that the player had been absent without justification, that the contractual penalty of USD 5,000,000 should apply in reduced form, and that only half salary was due.

Key holdings

  1. The stay was refused. Under Article 186(1bis) of the Swiss Private International Law Act (PILA), a CAS panel need not stay its proceedings because of parallel proceedings abroad unless there are serious reasons. Here there were none: all the evidence filed in the Lubumbashi criminal complaint was already in the CAS file. The club had also never reported any progress in the criminal case, which suggested a dilatory purpose. ¶¶ 71–75
  2. The "attestation de jeu" of 2 July 2021 was a unilateral termination by the club, made without just cause. Its purpose was to end the contract, and it expressly relied on Article 2. After it was handed over, the club stopped paying salary. It sent return flight tickets less than 48 hours before the flight, which the Panel saw as a probable attempt to trap the player rather than a real wish for his return. ¶¶ 82–85
  3. The player's evidence that the default notices were sent was more convincing than the club's general denials. That evidence was the cybercafé manager's statement, testimony from the Union des Footballeurs du Congo, and screenshots of e-mails to the club's FIFA TMS address. The club's failure to react to the notices indicated that it already treated the contract as ended. ¶ 84
  4. Full salary of USD 3,000 a month was due. The 50% reduction in Article 5.2 depended entirely on the club's own choice not to field the player. Under Article 156 of the Swiss Code of Obligations, a condition is deemed fulfilled when a party prevents it in bad faith, and the club never fielded him once. ¶ 89
  5. Compensation was correctly calculated under Article 17 RSTP as the residual value of the contract less his earnings at Africa Sports d'Abidjan. The Panel saw no reason to depart from the DRC's view that the contractual penalty clause was neither reciprocal nor proportionate. The award of USD 7,500 and USD 173,620 was confirmed and the appeal dismissed. ¶¶ 88–90; operative part

Procedural history

  1. 26 January 2021Five-season employment contract signed.
  2. 2 July 2021The club hands the player an "attestation de jeu" releasing him from his contract; he refuses to sign it.
  3. 9 September 2021The player terminates the contract for just cause, citing unpaid salary.
  4. 30 September 2021The player files a claim with the FIFA DRC; the club counterclaims USD 5,000,000.
  5. 16 November 2021The club files a criminal complaint in Lubumbashi alleging that the default notices were forged.
  6. 24 March 2022The FIFA DRC partially accepts the player's claim and rejects the counterclaim; the reasoned decision is notified on 2 May 2022.
  7. 18 May 2022The club files its statement of appeal with CAS.
  8. 9 September 2022The Panel rejects the club's request to stay the proceedings.
  9. 20 October 2022Hearing held by video conference.
  10. 18 August 2023Award: appeal dismissed and DRC decision confirmed.

Tribunal, counsel and experts

Decided by
For the claimant
Grégory Ernes · Hadrien Flamant · Sheena Belmans · Sven Demeulemeester
For the respondent
FIFPro · Derby Avocats

Run a conflict check on these names →

Keywords

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

Case ID
CAS 2022/A/8900
Claimant
Tout Puissant Mazembe
Respondent
Ousmane Diallo
Documents

Procedure: Appeal
Sport: Football
Matter: Contractual litigations (except transfer)
Outcome: Dismissed
Panel: Despina Mavromati, Alexander McLin, Jaime Castillo
Source: Court of Arbitration for Sport case database.