DRC Overdue Payables
Texto da decisão
REF. FPSD-12555
Decision of the
Dispute Resolution Chamber
passed on 22 February 2024
regarding an employment-related dispute concerning the player Souleymane
Coulibaly
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Tarek BRAUER (Germany), Member
Johan VAN GAALEN (South Africa), Member
CLAIMANT:
Souleymane Coulibaly, Italy & Côte d'Ivoire
Represented by Eva McHale
RESPONDENT:
Karmiotissa Polemidion, Cyprus
Represented by Panayiotis Georgiou
pg. 2
REF. FPSD-12555
I. Facts of the case
1.
On 1 July 2022, the Italian/Ivorian player Souleymane Coulibaly (hereinafter: Player or
Claimant) and the Cypriot club Karmiotissa Polemidion (hereinafter: Club or Respondent),
concluded an employment contract valid as from the date of signature until 30 June 2023
(hereinafter: Contract).
2.
Pursuant to clause 1.1 of the Contract, the Club had “the right to unilaterally extend the validity
of this Contract until 30/06/2024, provided that the Player is notified in writing of such extension no
later than 15/05/2023”.
3.
Pursuant to clause 1.3.1 of the Contract, the Player would be entitled to the total of EUR 18,000
net between July 2022 and June 2023, payable in 12 monthly instalments of EUR 1,500 net each
starting on 20 April 2022 until the full payment.
4.
In addition, the parties also signed an Annexe to the Contract titled “Image Rights Payments for
the Player” (hereinafter: Annexe).
5.
Pursuant to the Annexe, the Player would be entitled inter alia to the following amounts:
•
EUR 10,000 net as sign-on fee;
•
EUR 500 as bonus for each goal and assists in official games in League Protathlima Cyta;
•
EUR 102,000 net for the same duration of the Contract, payable in 12 monthly
instalments of EUR 8,500 net each starting on 20 August 2022 until 20 July 2023.
6.
On 19 September 2023, the Player put the Club in default and requested payment of EUR 22,800
net as outstanding remuneration within 10 days.
7.
On 2 October 2023, the Player sent the Club a reminder for the payment of the outstanding
dues, to no avail.
pg. 3
REF. FPSD-12555
II. Proceedings before FIFA
8.
On 7 November 2023, the Player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Claim of the Player
9.
In his claim, the Player requested to be awarded the total of EUR 21,800 net plus interests,
broken down as follows:
•
EUR 300 net as the balance for his remuneration of October 2022, plus 5% interest p.a.
as from 20 October 2022;
•
EUR 8,500 net as the image rights for May 2023, plus 5% interest p.a. as from 20 May
2023;
•
EUR 10,000 net as the entire remuneration for June 2023, plus 5% interest p.a. as from
20 June 2023;
•
EUR 3,000 as the reimbursement for the money loaned to the Club in October 2022 for
the payment of the Player’s agent, plus 5% interest p.a. as from 20 November (sic) 2022.
10. Furthermore, the Player requested that the costs of the proceeding are borne by the Club, as
well as sporting sanctions are imposed on the latter in line with art. 12bis of the FIFA Regulations
on the Status and Transfer of Players (RSTP).
b. Reply of the Club
11. On 8 December 2023, the Club filed its reply to the claim of the Player.
12. Initially, the Club challenged the Player’s claim to the balance of EUR 3,300 concerning his
remuneration for October 2022. In particular, the Club filed two receipts signed by the Player
stating that had received the full EUR 10,000 for that month, as well as highlighted that no
evidence of the loan had been advanced by the Player.
13. Furthermore, the Club also provided copies of financial documents issued by the Cyprus
Football Association (CFA) and countersigned by the Player in October, November, December
2022, and March 2023 stating that he had no outstanding remuneration. Consequently, the
Club stressed that any claim concerning debts from October 2022 and February 2023 should
be rejected.
pg. 4
REF. FPSD-12555
14. In parallel, and as to the payments of May and June 2023, the Club alleged having been
informed by the Player of his intention to leave Cyprus following the end of the first season,
reason why the Club did not exercise its right to extend the Contract (cf., clause 1.1), and the
parties agreed upon a final settlement of EUR 5,000, paid in cash on 30 June 2023. In support
of its argumentation, the Club filed a receipt signed by the Player with the reference “Full
Contract Salary Settlement until 30.06.2023”.
15. In view of the above, the Club explained that it does not owe any amount to the Player as well
as argued that he was estopped from departing from their previous agreements (venire contra
factum proprium). Alternatively, the Club requested that the EUR 5,000 paid to the Player in June
2023 be deducted from the balance now claimed.
16. The Club’s requests for relief were as follows, quoted verbatim:
“(i) Enforce its jurisdiction over the dispute at stake;
(ii) Reject entirely the Statement of Claim filed on behalf of Mr. Souleymane Coulibaly;
(iii) Subsidiarily, consider APK Karmiotissa Polemidion liable to proceed to the effective
payment of the amount of EUR 13.500 plus interest to Mr. Souleymane Coulibaly,
corresponding to the overdue remuneration under the Employment Contract.
(iv) Order Mr. Souleymane Coulibaly to bear any and all costs incurred as to the present
proceedings”.
c. Rejoinder of the Player
17. On 18 January 2024, the Player filed his rejoinder on this matter.
18. In doing so, the Player firstly clarified that there was a typographical error in the claim, insofar
as the balance of EUR 3,300 indeed concerned the services rendered in the month of
September 2022. Likewise, the remuneration claimed for May and June 2023 also corresponded
to amounts payable in June and July 2023, respectively. The reason for that, according to the
Player, was that the remuneration was payable in arrears, one month after the services being
rendered.
19. With the above in mind, the Player explained the following as to the specific concepts claimed:
•
Balance of EUR 3,300 for the remuneration payable in October 2022: he was requested
to sign the payment receipts in October and November 2022 stating that he had
received the full EUR 10,000, however in practice he received EUR 300 short and loaned
EUR 3,000 to the Club. The Player filed, in this respect: (i) copies of messages allegedly
exchanged with Club’s representatives via WhatsApp in which he inter alia requested to
pg. 5
REF. FPSD-12555
receive the EUR 3,000 back; and (ii) a copy of the representation agreement signed
between himself and his agent.
In parallel, the Player argued that payment certificates issued by the CFA were
misleading because they referred to the work performed in the previous month.
Therefore, the document signed in November 2022 indeed referred to the salary for
October 2022, and so on and so forth. Furthermore, those certificates were provided to
the Player in the training ground, and without proper instruction as to which concepts
they referred to, entailing that they do not prove that the amounts were effectively paid.
Likewise, in case the certificates were ultimately considered to be valid, it should be
understood that all the subsequent months claimed were not paid in that the Club failed
to provide certificates for the subsequent period (venire contra factum proprium); and
•
Remuneration for the services rendered in May and June 2023: the Club had never
manifested its intention to extend the Contract and the parties also did not reach an
agreement for the final settlement in June 2023. In fact, the Player received the partial
payment of EUR 5,000 in cash, however without prejudice to his outstanding dues –
which should have been received in the following 10 days, to no avail. The Player also
referred to WhatsApp messages allegedly exchanged with the Club’s representatives in
this respect and denied the existence of any settlement agreement.
20. Finally, the Player concluded that he is still entitled to all amounts claimed, however he
accepted the deduction of the EUR 5,000 received in June 2023.
d. Final comments of the Club
21. On 5 February 2024, the Club filed its final comments on this matter.
22. Preliminarily, the Club stressed that the Player’s narrative regarding the concepts sought was
rather confusing. In particular, it outlined that the Player confirmed having signed multiple
documents that he now appears to challenge.
23. The Club made the following remarks as to the quantum in dispute:
•
Balance of EUR 3,300 for the remuneration payable in October 2022: the Club once
again referred to the certificates signed by the Player acknowledging that the salaries
for all September, October, November, December 2022, and March 2023 had been
received. It insisted that the Player’s position concerning the balance of EUR 300 is
therefore not substantiated, hence shall be rejected.
Concerning the loan of the EUR 3,000, the Club challenged the documentation filed by
the Player and denied having any contractual link to his agent. Likewise, the Club denied
having undertaken any liability towards a third party and concluded that the Player
failed to advance evidence in support of his position.
pg. 6
REF. FPSD-12555
•
Remuneration for the services rendered in May and June 2023: the Club reiterated its
own narrative according to which the EUR 5,000 paid in June 2023 were the final
settlement between the parties. The Club also challenged the evidentiary weight of the
WhatsApp conversations filed by the Player together with his rejoinder stating that the
parties therein concerned were not properly identified.
24. Alike the Player, the Club also insisted on its requests for relief per its reply brief and reiterated
that the claim should be entirely rejected.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
25. First of all, the Dispute Resolution Chamber (hereinafter: 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 presented to FIFA on 7 November 2023 and submitted for decision on 22 February
2024. Taking into account the wording of art. 34 of the May 2023 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.
26. Furthermore, the Chamber 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, par. 1 lit. b) of the FIFA RSTP
(February 2024 edition), the DRC is competent to deal with the matter at stake, which concerns
an employment-related dispute with an international dimension between an Ivorian and Italian
player, and a Cypriot club.
27. At this point, the Chamber acknowledged that in the claim at hand the Player requests to be
awarded both outstanding salaries per the Contract and image rights per the Annexe.
Regarding the latter, the DRC recalled that, in principle, FIFA is not competent to decide on
agreements in which the subject-matter is the license of image rights, as those are not
employment-related agreements. However, in line with the Football Tribunal’s longstanding
jurisprudence, such conclusion might be different if specific elements of the separate
agreement suggest that it was in fact meant to be part of the actual employment relationship.
Therefore, image rights agreements shall be assessed on a case-by-case basis, considering the
particularities and specific circumstances of each individual dispute (cf., Commentary on the
RSTP, Edition 2023 – page 460-2).
28. While considering the above, and ex officio, the Chamber carefully analysed the wording of the
Annexe and confirmed that it has indeed a hidden employment-related nature (instead of a
civil one) as described by the jurisprudence of the Football Tribunal. In particular, the Chamber
deemed that the title and the wording of the Annexe by itself confirms its umbilical bond with
pg. 7
REF. FPSD-12555
the Contract and corroborates that it was in fact meant to be part of the actual employment
relationship. Most of all, this was also not challenged by the Club.
29. Consequently, the DRC confirmed that the Annexe is accessory to the Contract, hence shall be
entertained together for the purpose of the dispute at hand. It followed, in the Chamber’s view,
that the Football Tribunal has jurisdiction over the dispute at stake in its entirety (cf., art. 22,
par. 1, lit. b) of the FIFA RSTP).
30. Subsequently, the Chamber analysed which regulations 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 FIFA RSTP (February 2024 edition) and considering that the present claim was lodged
on 7 November 2023, the May 2023 edition of said regulations (hereinafter: the Regulations)
is applicable to the matter at hand as to the substance.
b. Burden of proof
31. The Chamber 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 Chamber stressed the wording of art.
13 par. 4 of the Procedural Rules, pursuant to which it 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
32. Its competence and the applicable regulations having been established, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on 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.
i. Main legal discussion and considerations
33. The foregoing having been established, the Chamber moved to the substance of the matter,
and recalled that it pertains to a claim for overdue payables lodged by the Player against the
Club based on the Contract and its Annexe.
34. In particular, the DRC acknowledged that the Player claims to be entitled to: (i) a balance of EUR
3,300 from the remuneration payable in October 2022; (ii) a balance of EUR 3,500 as the image
rights payable in June 2023; and (iii) EUR 10,000 as the full remuneration (i.e., salary and image
rights) payable in July 2023.
pg. 8
REF. FPSD-12555
35. The Chamber was also observant that the Club, on the other hand, disputes the Player’s
entitlement to all the amounts based inter alia on the multiple acknowledgements of receipts
signed by the latter for the duration of the Contract, and on the alleged settlement between
the parties in June 2023 establishing that he would be no longer entitled to any residual credit.
36. Against this background, the DRC determined that its task is to assess the Player’s entitlement
to each of the claimed amounts vis-à-vis the position of the parties and the documentation
submitted in support of their respective arguments.
37. The Chamber then moved to the analysis of each concept in turn.
(1)
Balance of EUR 3,300 for the remuneration payable in October 2022
38. First of all, the Chamber noted that the Player argued that he was paid EUR 300 short in October
2022, as well as loaned additional EUR 3,000 to the Club to pay his agent fees, which were never
returned. The Club, for its part, disputed both allegations.
39. In this respect, the DRC found it essential that the Player undisputedly signed at least four
supervenient documents stating that the remuneration October 2022 was received in its
entirely, without any reservation of rights. Furthermore, the Player limited himself to justify the
signature of those receipts by alleging that he was not aware of which concepts they referred
to and/or their legal implications.
40. Notwithstanding the above, the DRC recalled that its jurisprudence is solid to established that
parties are required to have a degree of diligence when signing documents such as the ones at
hand. It follows that the legal effects of a written statement (or multiple, such in the case at
hand) cannot be simply nullified exclusively based on the alleged ignorance of the content by
the signatory party – the Player in casu.
41. As to the alleged loan, the DRC found it equally important that: (i) there is no document
corroborating the Club’s liability to the payment of agent fees, let alone demonstrating that the
Player had agreed to make the payment on its behalf and then be reimbursed; (ii) the WhatsApp
conversations filed by the Player in this respect lack proper identification of the parties involved,
as well as have limited evidentiary weight to prove, alone, the existence of a two-way agreement
between the parties; and (iii) in contrast, the Player confirmed having signed payment receipts
for the entire amount owed in October 2022, contradicting his own position.
42. Having taken all the above into consideration, the Chamber concluded that the Player could
not discharge his burden of proof concerning the EUR 3,300 sought. In other words, the DRC
deemed that the Player could not establish to a comfortable satisfaction degree that he signed
the multiple receipt in false and, moreover, that the ensuing consequences were imputable to
the Club.
43. Thus, the DRC decided that the Player’s request to this extend should be rejected.
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REF. FPSD-12555
(2) Balance of EUR 13,500 for the services rendered in May and June 2023
44. In addition, the Chamber took noted that the Player alleged having only received EUR 5,000 out
of the EUR 18,500 claimed for the image rights payable in June 2023 (EUR 8,500) plus the full
remuneration payable in July 2023 (EUR 10,000).
45. In this connection, the Chamber highlighted that the Club acknowledged having failed to pay
the amount of EUR 13,500, however argued that the parties had validly agreed the Player would
not receive such amount and, in consideration, the Club would not exercise its right to extend
the Contract for one extra season in line with clause 1.1 of the Contract.
46. While analysing the above and bearing in mind the exact same criteria as the one used for the
rejection of the Player’s claim concerning the payment of October 2022 (i.e., the parties’ burden
of proof per art. 13, par. 5 of the Procedural Rules), the Chamber was of the opinion that the
Club was now the party failing to corroborate the existence of a settlement agreement between
the parties. Accordingly, the Chamber underlined that the only document advanced by the Club
was a payment receipt with the reference to a settlement of salaries, however with no
confirmation as to the Player’s entitlement to any residual amount.
47. By the same token, the DRC deemed that the Club’s narrative concerning the extension of the
Contract was logically dubious in that the abovementioned cash receipt was only signed in June,
hence far after the deadline for the Club to trigger the extension of the Contract per clause 1.1
had already expired. For the Chamber, this was without forgetting that the unilateral right to
the extension of the Contract could also be subject to discussion concerning its reasonableness
and proportionality, per the well-established jurisprudence of the Football on the topic.
48. Considering the above, the Chamber determined that the Player should be entitled to the EUR
13,500 net claimed based on the principle of pacta sunt servanda.
49. Taking into consideration the Player’s request as well as the constant practice of the Chamber
in this regard, the latter decided to award him interest at the rate of 5% p.a. on the outstanding
amounts as follows:
•
Over EUR 3,500 net as from 21 June 2023; and
•
Over EUR 10,000 net as from 21 July 2023.
50. Lastly, and by way of conclusion, the Chamber concluded that the claim of the Player should be
partially accepted.
pg. 10
REF. FPSD-12555
ii. Art. 12bis of the Regulations
51. The Chamber then referred to art. 12bis par. 2 of the Regulations, which stipulates that any
club found to have delayed a due payment for more than 30 days without a prima facie
contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the Regulations.
52. To this end, the DRC confirmed that the Player put the Club in default of payment of the
amounts sought, which had fallen due form more than 30 days, and granted the Club with 10
days to cure such breach of contract.
53. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the club. On account of the above and bearing in mind
that this is the second offense by the Club within the last two years, the DRC decided to impose
a reprimand on the Club in accordance with art. 12bis par. 4 lit. b) of the Regulations.
54. In this connection, the Chamber wished to highlight that a repeated offence will be considered
as an aggravating circumstance and lead to more severe penalty in accordance with art. 12bis
par. 6 of the Regulations.
iii. Compliance with monetary decisions
55. Subsequently, the Chamber 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.
56. In this regard, the DRC 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.
57. Therefore, bearing in mind the above, the DRC decided that the Club must pay the full amount
due (including all applicable interest) to the Player within 45 days of notification of the decision,
failing which, at the request of the Player, 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 Club in accordance with art. 24
par. 2, 4, and 7 of the Regulations.
58. The Club shall make full payment (including all applicable interest) to the bank account provided
by the Player in the Bank Account Registration Form, which is attached to the present decision.
59. 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. 24 par. 8 of the
Regulations.
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REF. FPSD-12555
d. Costs
60. The Chamber 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 Chamber decided that no procedural costs were to be imposed on the parties.
61. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25 par. 8
of the Procedural Rules and decided that no procedural compensation shall be awarded in
these proceedings.
62. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
pg. 12
REF. FPSD-12555
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Souleymane Coulibaly, is partially accepted.
2.
The Respondent, Karmiotissa Polemidion, must pay to the Claimant the following
amount(s):
- EUR 3,500 net as outstanding remuneration plus 5% interest p.a. as from 21 June 2023
until the date of effective payment; and
- EUR 10,000 net as outstanding remuneration plus 5% interest p.a. as from 21 July 2023
until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A reprimand is imposed on the Respondent.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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.
7.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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. 14