DRC Overdue Payables
Texto da decisão
REF FPSD-8846
Decision of the
Dispute Resolution Chamber
passed on 29 March 2023
regarding an employment-related dispute concerning
the player Cheick Diabate
BY:
Alejandro Atilio Taraborelli (Argentina)
CLAIMANT:
Mr Cheick Diabate, Mali & France
Represented by Ms Pinar Yuzer
RESPONDENT:
Esteghlal FC, Iran
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REF FPSD-8846
I. Facts of the case
1. On 1 July 2019, the player and Esteghlal FC concluded an employment contract valid from 1 July
2019 until 30 June 2021.
2. The contract stipulated the following:
“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 Twentyfive 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/=(0ne 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. On 10 November 2021, the FIFA DRC, in the matter FPSD-3326, decided that Esteghlal FC shall
pay to the Claimant, outstanding salaries from November 2020 until May 2021.
4. On 5 July 2022, the player sent a default notice and requested the payment of a total
outstanding amount of USD 79,032, corresponding to his pro rata salary from 1 June 2021 until
8 August 2021. The player granted 10 days to remedy the default.
5. According to TMS; the player transferred from Esteghlal FC to Al-Gharafa SC (Qatar) “out of
contract” on 19 September 2021.
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II. Proceedings before FIFA
6. On 10 January 2023, the player lodged a claim before FIFA for outstanding remuneration and
requested the payment of a total amount of USD 79,032, plus interests, detailed as follows:
- USD 35,000 for June 2021;
- USD 35,000 for July 2021;
- USD 9,032 as pro rata until 8 August 2021.
7. The player argued that he stayed with the club until 8 August 2021 and presented a document
from “Besoccer” in support of his allegation.
8. In its reply, the Respondent explained that the contract expired on 30 June 2021 and therefore
the player’s claim lacks of any contractual basis.
9. In his replica, the Claimant insisted that the amount of USD 79,032 remains due.
10. The Claimant explained that he was at the club’s disposal until 8 August 2021.
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REF FPSD-8846
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as the
Single Judge or Judge) analysed whether he was competent to deal with the case at hand. In this
respect, he took note that the present matter was presented to FIFA on 10 January 2023 and
submitted for decision on 29 March 2023. Taking into account the wording of art. 34 of the October
2022 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 Single Judge 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 lit. b) of the Regulations on the Status
and Transfer of Players (October 2022 edition), 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 Malian and French player and an Iranian club.
3.
Subsequently, the Single Judge 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 (October 2022 edition), and considering
that the present claim was lodged on 10 January 2023, the October 2022 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
4.
The Single Judge 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 Single Judge 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.
5.
Merits of the dispute
Its competence and the applicable regulations having been established, the Single Judge entered
into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However, the
Single Judge 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.
The foregoing having been established, the Single Judge moved to the substance of the matter
7.
In this context, the Single Judge observed that the player and Esteghlal FC concluded an
employment contract valid as from 1 July 2019 until 30 June 2021.
8.
On this note, the Judge observed that, on 10 November 2021, the FIFA DRC, in the matter FPSD3326, decided that Esteghlal FC shall pay to the Claimant, outstanding salaries from November
2020 until May 2021.
9.
Within this context, the judge noted that the player lodged a claim before FIFA for outstanding
remuneration and requested the payment of a total amount of USD 79,032, plus interests,
detailed as follows:
- USD 35,000 for June 2021;
- USD 35,000 for July 2021;
- USD 9,032 as pro rata until 8 August 2021.
10.
The Judge further noted that the player argued that he stayed with the club until 8 August 2021
and presented a document from “Besoccer” in support of his allegation.
11.
On the other hand, the Judge took note of the club’s position, according to which the contract
expired on 30 June 2021 and therefore the player’s claim lacks of any contractual basis.
12.
In view of the above, the Judge referred to the contractual terms, and noted that it
unambiguously stated that it was valid until 30 June 2021.
13.
In relation to a possible extension of the contract, the Judge observed the evidence on file, the
player failed to furnish clear evidence that the parties agreed to the extension of the contract
beyond 30 June 2021, which led to the determination that remuneration could only be paid up
until that point. The Judge also noted that in the Decision FPSD-3326 it was previously decided
that the club shall pay to the player his salaries from November 2020 until May 2021.
14.
Furthermore, the Single Judge noted that the club did not prove that the salary of June 2021 was
claimed.
15.
Consequently, in strict application of the principle of pacta sunt servanda, the DRC Judge
established that the Respondent has to pay to the Claimant, the total outstanding amount of
EUR 35,000, corresponding to his salary of June 2021.
16.
Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the DRC Judge decided to award 5% interest p.a. over said amount
as from the due date.
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17.
In continuation, the Single Judge 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.
18.
To this end, the Single Judge confirmed that the player put the club in default of payment of the
amounts sought, which had fallen due more than 30 days before, and granted the club a 10-day
deadline to cure such breach of contract.
19.
Accordingly, the Single Judge confirmed that the club had delayed a due payment without a
prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
20.
The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the club. On account of the above, the Single Judge decided
to impose a warning on the club in accordance with art. 12bis par. 4 lit. a) of the Regulations.
21.
In this connection, the Single Judge highlighted that a repeated offence will be considered as an
aggravating circumstance and lead to a more severe penalty in accordance with art. 12bis par. 6
of the Regulations.
ii. Compliance with monetary decisions
22. Finally, taking into account the applicable Regulations, the Single Judge 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.
23. In this regard, the Single Judge 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.
24. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of notification of
the decision, failing which, at the request of the Claimant, 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 Respondent in accordance with art.
24 par. 2, 4, and 7 of the Regulations.
25. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form.
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26. The Single Judge 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
27. The Single Judge 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.
28. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25 par. 8
of the Procedural Rules, and decided that no procedural compensation shall be awarded in these
proceedings.
29. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Cheick Diabate, is partially accepted.
2.
The Respondent, Esteghlal FC, has to pay to the Claimant, the amount of USD 35,000 as
outstanding remuneration plus 5% interest p.a. as from 1 July 2021 until the date of effective
payment.
3.
Any further claims of the Claimant are rejected.
4.
A warning 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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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