Labour Disputes
Texto da decisão
REF FPSD-3326
Decision of the
Dispute Resolution Chamber
passed on 10 November 2021
regarding an employment-related dispute concerning the player Cheick Diabaté
BY:
Clifford J.HENDEL (USA & France), Deputy Chairperson
Alejandro ATILIO TARABORELLI (Argentina), member
Stella MARIS JUNCOS (Argentina), member
CLAIMANT:
Cheick Diabaté, France & Mali
RESPONDENT:
Esteghlal FC, Iran
REF FPSD-3326
I Facts
1. The player Cheick Diabaté and Esteghlal FC concluded an employment contract with the following
conditions:
“Article 2; Duration of the Contract
2.1. The Contract is valid for the period from 01 July 2019 and expires on 30 June 2020 corresponding
to two sporting seasons, i.e. the sporting season 2019-2020 and the 2020-2021.
Article 3; The Value of the Contract and the Term of Payment
3.1. The value of the Contract for the season 2019-2020 is USD 525,000.00/=(Five Hundred and
Twenty-five Thousand US Dollars Only) net and the value of the contract for the football season
2020-2021 is USD 525,000.00/=(Five Hundred and Twenty-five Thousand US Dollars Only) net.
3.2. The Club shall pay to the Player an amount of USD 105,000.00/=(one Hundred and Five
Thousand US Dollars Only) net as advance payment which shall be paid upon signature of this
Contract and until 10 July 2019 at the latest.
3.3. The Club shall pay to the Player a monthly salary of USD 35,000.00/= (Thirty five Thousand US
Dollars Only) net during the period from 1 July 2019 until 30 June 2020.
3.4. The Club shall pay to the Player an amount of USD 105,000.00/=(one Hundred and Five
Thousand US Dollars Only) net as advance payment which shall be paid upon signature of this
Contract and until 10 July 2020 at the latest
3.5. The Club shall pay to the Player a monthly salary of USD 35,000.00/=(Thirty five Thousand US
Dollars Only) net during the period from 1 July 2020 until 30 June 2021.
3.6. The monthly salaries as mentioned above shall be paid every 10th of the following month to
which they are referred to.
3.7 The Club shall pay to the Player financial bonus according to his technical performance as follows:
(…)
Every match appearance for more than 15 minutes: USO 1,000.00/=
(One Thousand US Dollars Only).
(…)
3.11. The Club agrees to pay to the Player's Intermediary, Mr. Thibaut, Camille, Jean Urien
(hereinafter, also referred to as the "Intermediary"), who - signing the Contract - also fully agrees and
expressly accepts, a commission fee (hereinafter, "Commission Fee") in the net amount of USD
50,000.00/= (Fifty Thousand US Dollars Only) for each one of the two (2)contractual sporting seasons
of the Contract (i.e. 2019/2020 and 2020/2021) to be paid to the Intermediary in four (4) installments
of USD 25,000.00/= each, upon issuance of the relevant invoice, on or before 15 July 2019, 15
December 2019, 15 July 2020 and 15 December 2020 respectively.”
(…)
4.2. The Player accepts the Club's Disciplinary Code and internal Regulations and acknowledges that
they have been made available and explained to him before signing of the contract.
(…)
6.2. The Player accepts to pay USD 5,000.00/= penalty per day for any unjustified and unauthorized
absence in training sessions.
REF FPSD-3326
6.3. The Player accepts to pay USD 20,000.00/= penalty for the unjustified and unauthorized absence
in an official match.
2. On 21 June 2021, the player, via his lawyer, sent a default notice to the club indicating the following:
”Regarding the employment contract that Estcghlal FC. signed with M. Diabate on July 2019:
Since the beginning of this employment contract salaries, bonuses, intennediary fees are either paid
with delay or not paid at all.
As of today. you owe 267 000$ (two hundred and sixty-seven thousand US Dollars) to the player.
Details are as follows:
Salaries:
November 2020: 35 000$
February 2021: 35 000$
March 2021 : 35 000$
Ap1il 2021 : 35 000$
May 2021: 35 000$
Agent Fee:
15/12/2020: 25000$
Bonus:
Qualification from group Stage AFC club: 50 000$
17 match appearances: 17 000$
(…)
If you fail lo execute the total payment within 10 days from the receipt of this registered letter the
dispute will be submitted to the Dispute Resolution Chamber of FIFA.
(…)
3. On 25 May 2021, the club issued the following sanction:
“Referring to the report made by the team manager Mr. Mazloomi regarding respondent miss
conduct behavior and after his presence in the committee hearing session with his interpreter, the
club Disciplinary Committee held in the presence of the undersigned committee members.
(…)
The members of the committee after hearing the respondent's defense found it not enough and
Unanimously found that Mr. Diabate has not obeyed the coach's order intentionally and it was not
his will to attend the match. Therefore, the club disciplinary committee, according to the art. 29 of
the club disciplinary code. issues a verdict on his conviction and decided to make a penalty equal to
5% of the total value or the contract for the current season for the respondent accordingly.
This decision delivered in person to the respondent and he can reguest for an appeal to the appeal
committee of the club in 10 days after receiving this decision.”
4. On 14 August 2021, Cheick Diabaté lodged a claim before FIFA for and requested the payment of
USD 267,000 as indicated in his default notice, plus eventual interests.
5. In its reply to the claim, the Respondent complained that the claim of the player was addressed in
French.
6. The Respondent also considered that “the player's lawyer is not authorized to file a lawsuit and file
a complaint regarding the contract between the parties against the Esteghlal Club.”
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7. As to the substance, the club explained that the player was absent during 15 training sessions.
8. In view of the above, the Respondent explained that, in accordance with art. 6 par. 2 of the contract,
a fine of USD 75,000 was imposed.
9. The Respondent further stated that the player “was called to the disciplinary committee of the club
for non-compliance with the head coach's instructions regarding substitution during the official
match.”
10. Hence, the Respondent stated that on 25.05.2011 it notified the player with a sanction consisting in
“a deduction of 5% from the amount of the contract for the 2020-2021 season (equivalent to$
26,250).”
11. The club further argued that on 15 September 2021, it sentenced the player “to a deduction of $
15.000 from the contract amount for three absences in physiotherapy sessions.”
12. The club further argued that “was absent in the final game of the Iran Hazti Cup on 08. Agu.2021.”
and that consequently, he was fined with USD 20,000.
13. In addition, the club stated that “due to the restrictions and sanctions on the international transfer
of monies imposed on the Islamic Republic of Iran. it is virtually impossible for the club to affect any
international transfer”
14. The club further referred to the COVID-19 pandemic and explained that it was under a situation of
force majeure.
15. In conclusion, the club requested the rejection of the claim and considered that all due amounts have
been settled.
16. In his replica, the player underlined that English and French are part of the official languages for
procedures submitted to FIFA for payment arrears in accordance with the regulations in force.
17. In this regard, the player detailed once again the requested amounts as follows:
Salaries:
November 2020: $ 35,000
February 2021: $ 35,000
March 2021: $ 35,000
April 2021: $ 35,000
May 2021: $ 35,000
Agent Fee:
12/15/2020: $ 25,000
Bonus:
Qualification from group AFC club stage: $ 50,000
17 match appearances: $ 17,000
18. As to the alleged absences, the player acknowledged that he was absent from the 11 training sessions
from 15.10.2020 to 26.10.2020, and noted that this was due to the COVID-19 situation. However,
the player noted that his request for salaries does not concern said period.
REF FPSD-3326
19. The player also acknowledged that he was absent from 3 training sessions from 11 September 2020
until 14 September 2020. However, the player noted that his request for salaries does not concern
said period.
20. The player also acknowledged that he was absent from training on 2 July 2020. The player noted
that his request for salaries does not concern said period.
21. As to the disciplinary sanction for insubordination, the player acknowledged that he did not incurred
in “insubordination”, but was “quite simply (…) changing his shoes when the coach asked him to
play”.
22. The player acknowledged that he should be “better organized”. However, the player considered that
the reduction of 5% of his salary is applicable as follows:
5% reduction over the following 7 months :
November 2020, December 2020, January 2021, February 2021, March 2021, April 2021 and May
2021.
35 000 / 100 x 5 x 7 = $ 12250
Hence, the player requested “if applicable”, to correct the calculation made by the Club and apply a
reduction of USD 12,250 only.
23. As to the absences from physiotherapy, the player explained that he always attended them and that,
in any case “He was never properly summoned to a committee on this subject. He was never able to
explain or defend himself. He does not even know how one can blame him for an absence while he
was present.”
24. In relation to the deduction for not playing a match, the player explained that he did no play on 8
August 2021 because he was injured. The player therefore considered that “It is inadmissible for the
Club to accuse [him] for a match to which he has not been summoned.
25. In sum, the player requested to reject any reduction of salaries.
26. As final comments, the club considered that the claim of the player is “very disrespectful and
indecent”.
27. The club considered that the amount claimed by the player has no legal or contractual basis.
28. The club insisted that the player was duly sanctioned in accordance with the imposition of sanctions
as per art. 4.2 of the contract.
29. In this respect, the club argued that “that according to the club's procedure and to protect the players'
rights, all players' disciplinary penalties will be deducted from their contract amount at the encl or
the season to give them a chance to behave differently and in some cases, if the player does not
repeat his fault, he may be subjected to forgiveness.”
REF FPSD-3326
30. The club concluded by requesting a “a fair and just verdict on the rejection of the claimant's claim in
the amount of 136,250 USD”, noting that it “strongly believes that all salaries and financial bonuses
regarding the employment contract have been paid in full, but because o f sanctions imposed against
Iranian banks, they have been paid through different sources on behalf of Esteghlal FC accordingly.
REF FPSD-3326
II Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1. First, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber) 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 14 August 2021 and submitted for decision on 10 November 2021.
Considering the wording of art. 34 of the October 2021 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.
2. Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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
Regulations on the Status and Transfer of Players (August 2021 edition), it is competent to deal with
the matter at stake, which concerns an employment-related dispute with an international dimension
between a French and Malian player and an Iranian club.
3. 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
Regulations on the Status and Transfer of Players (August 2021 edition), and considering that the
present claim was lodged on 14 August 2021, the August 2021 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
4. 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
5. 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 abovementioned 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
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6. First, the Chamber noted that the player and the club concluded a contract with the conditions that
are quoted in point I. 2 above, and particularly a period of validity from 1 July 2019 until 30 June
2020, as well as a salary of USD 35,000 from 1 July 2020 until 30 June 2021.
7. Subsequently, the Chamber observed that the player lodged a claim against the club for outstanding
remuneration, and requested the payment of the total amount of USD 267,000, corresponding to
the following amounts:
Salaries:
November 2020: 35 000$
February 2021: 35 000$
March 2021 : 35 000$
April 2021 : 35 000$
May 2021: 35 000$
Agent Fee:
15/12/2020: 25000$
Bonus:
Qualification from group Stage AFC club: 50 000$
17 match appearances: 17 000$
8. On the other hand, the Chamber took note of the Respondent’s position, according to which the
player was sanctioned on 25.05.2021 with “a deduction of 5% from the amount of the contract for
the 2020-2021 season (equivalent to$ 26,250)” and that, also in view of an alleged absence during
15 training sessions, a fine of USD 75,000 was imposed.
9. The Chamber further noted that the Respondent argued that the following sanctions were imposed:
- On 15 September 2021, a deduction of $ 15.000 from the contract amount for three absences in
physiotherapy sessions.
- Fine of USD 20,000 for absence in the final game of the Iran Hazti Cup on 8 August 2021.
10. In view of the above, and after duly examining the evidence gathered during the investigation, the
Chamber noted that the Respondent apparently tried to offset the payment of salaries with the
imposition of alleged disciplinary fines. Under any circumstance, however, the Chamber noted that
there is no evidence that the player participated in any fair procedure.
11. In addition, as to the sanction of 25 February 2021 consisting in 5% from the amount of the player’s
salary, the Chamber believed it had a clearly abusive nature and that therefore it shall be disregarded.
REF FPSD-3326
12. Furthermore, the Chamber also noted that some of these sanctions do not concern the period of
time claimed by the player, i.e. from November 2020 until May 2021.
13. As a result, the DRC established that the imposition of said potential fines should be disregarded.
14. Therefore, the Chamber decided that the player is entitled to his full salaries for November 2020, as
well as for the period between February 2021 until May 2021, i.e. USD 35,000*5 = USD 175,000.
15. Consequently, in strict application of the principle of pacta sunt servanda, the Chamber established
that the Respondent has to pay to the Claimant, the total outstanding amount of USD 175,000, as
agreed in the contract.
16. Furthermore, the Chamber took note of the player’s request for bonuses (“Qualification from group
AFC club stage: $ 50,000” and “17 match appearances: $ 17,000”).
17. However, in this respect, the Chamber referred to 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, and observed that the player did not prove that the conditions for the payment of said bonus
were met.
18. The Chamber further noted that the player requested the payment of USD 25,000 as “agent fee”.
19. Yet, in relation to said request, the Chamber observed that, following art. 3.11 of the contract, said
amount had to be paid directly to the player’s intermediary, and not to him. Thus, the Chamber
understood that the player is not contractually entitled to claim said amount.
ii.
Compliance with monetary decisions
20. Finally, taking into account the applicable Regulations, 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.
21. In this regard, the Chamber 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.
22. Therefore, bearing in mind the above, the Chamber 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 creditor, 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.
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23. The club shall make full payment (including all applicable interest) to the bank account provided by
the player in the Bank Account Registration Form.
24. The Chamber 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.
d.
Costs
25. 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.
26. Furthermore, 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.
27. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made by any
of the parties.
REF FPSD-3326
III Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Cheick Diabaté, is partially accepted insofar it is admissible.
2.
The Respondent, Esteghlal FC, has to pay to the Claimant, the amount of USD 175,000, plus
interest as follows:
-
5% interest p.a. over the amount of USD 35,000 as from 1 December 2020 (salary of November 2020) until the date of effective payment;
-
5% interest p.a. over the amount of USD 35,000 as from 1 March 2021 (salary of February 2021) until the date of effective payment;
-
5% interest p.a. over the amount of USD 35,000 as from 1 April 2021 (salary of March 2021) until the date of effective payment;
-
5% interest p.a. over the amount of USD 35,000 as from 1 May 2021 (salary of April 2021) until the date of effective payment;
-
5% interest p.a. over the amount of USD 35,000 as from 1 June 2021 (salary of May 2021) until the date of effective payment;
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1.
2.
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.
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.
6.
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.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-3326
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).
CONTACT INFORMATION
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