Labour Disputes
Texto da decisão
Decision of the
DRC Judge
passed via videoconference, on 12 June 2020,
regarding an employment-related dispute concerning the player Mohamed Oumar
Konaté
BY:
Daan de Jong (Netherlands), DRC Judge
CLAIMANT:
Mohamed Oumar Konaté, Mali
Represented by Mr Jan Schweele
RESPONDENT:
RS Berkane, Morocco
Tel: +41 43/222 7777 [email protected]
REF 20-00263/eam
I. FACTS OF THE CASE
1.
On 9 July 2015, the Malian player, Mr Mohamed Oumar Konaté (hereinafter: the player
or Claimant) and the Moroccan club, RS Berkane (hereinafter: the club or Respondent)
signed an employment contract (hereinafter: the contract) valid as from 1 July 2015 until
30 June 2018.
2.
According to art. 9 of the contract, the Claimant was entitled to receive 10% of the net
amount of any potential transfer from the Respondent to a third club.
3.
In July 2017, the Claimant was transferred from the Respondent to the Tunisian club,
Etoile du Sahel. The Respondent and Etoile du Sahel agreed upon a transfer fee in the
amount of EUR 500,000.
4.
On 28 January 2020, the Claimant put the Respondent in default, granting 10 days to
pay the amount of EUR 50,000, corresponding to 10% of EUR 500,000, for the transfer
of the Claimant from the Respondent to the club, Etoile du Sahel.
5.
On 10 February 2020, the Claimant lodged a claim against the Respondent in front of
FIFA.
6.
In his claim, the Claimant first held that the Respondent had paid the transfer fee in the
amount of EUR 500,000 to the club, Etoile du Sahel, in two instalments as follows:
-
EUR 200,000 in August 2017;
EUR 300,000 in August 2019.
7.
Furthermore, the Claimant argued that the present matter met the criteria of art. 12bis
of the Regulations on the Status and Transfer of Players, insofar as the amount in dispute
had been due for more than 30 days and a 10-day deadline had been granted to the
Respondent to make said payment.
8.
In light of the above, the Claimant requested the payment of EUR 50,000, plus 5%
interest p.a. as from August 2018 (the due date according to the Claimant).
9.
The Claimant also requested the imposition of a fine and a ban from registering any new
players for one or two registration periods on the Respondent.
10. In spite of being invited to do so, the Respondent did not reply to the claim.
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REF 20-00263/eam
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE
1.
First of all, the Dispute Resolution Chamber judge (hereinafter also referred to as the
judge or DRC judge) analysed whether he was competent to deal with the case at hand.
In this respect, he took note that the present matter was submitted to FIFA on
10 February 2020. Consequently, the November 2019 edition of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the
Procedural Rules).
2.
Subsequently, the judge referred to art. 3 par. 1 of the Procedural Rules and confirmed
that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (June 2020 edition), the Dispute
Resolution Chamber judge is competent to deal with the matter at stake, which concerns
an employment-related dispute with an international dimension between a Malian
player and a Moroccan club.
3.
Furthermore, the judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that in accordance with art. 26
par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (June 2020
edition), and considering that the present claim was lodged on 10 February 2020, the
January 2020 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the judge entered into the substance of the matter. In this respect, the judge
started by acknowledging all the above-mentioned facts as well as the arguments and
documentation on file. However, the judge emphasised that in the following
considerations, he will refer only to the facts, arguments and documentary evidence
which he considered pertinent for the assessment of the matter at hand. In particular,
the judge recalled that, in accordance with art. 6 par. 3 of Annex 3 of the Regulations,
FIFA may use, within the scope of proceedings pertaining to the application of the
Regulations, any documentation or evidence generated or contained in the FIFA Transfer
Matching System (hereinafter: TMS).
5.
In this respect, the judge acknowledged that the Claimant and the Respondent had
signed an employment contract on 9 July 2015, valid as from 1 July 2015 until 30 June
2018. Moreover, the judge took note of art. 9 of the contract, according to which the
Claimant was entitled to receive 10% of the net amount of any potential transfer from
the Respondent to a third club. In this respect, the judge observed that the Claimant
was transferred from the Respondent to the Tunisian club, Etoile du Sahel, in July 2017
for a transfer fee of EUR 500,000.
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REF 20-00263/eam
6.
In continuation, the judge noted the Claimant’s allegations that the Respondent had
paid the transfer fee of EUR 500,000 in two instalments, EUR 200,000 in August 2017
and EUR 300,000 in August 2019.
7.
Subsequently, the judge noted that the Respondent failed to provide its reply to the
claim, in spite of having been invited to do so. By not presenting its position to the claim,
the DRC judge was of the opinion that the Respondent renounced its right of defence
and thus, in principle, accepted the allegations of the Claimant.
8.
Furthermore, as a consequence of the aforementioned consideration, the DRC judge
concurred that in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a
decision upon the basis of the documentation already on file; in other words, upon the
statements and documents presented by the Claimant.
9.
In this context, the judge pointed out that it remained uncontested that the Claimant
was in fact entitled to receive 10% of any transfer fee from the Respondent to a third
club. In continuation, the judge observed that it also remained uncontested that the
Claimant had in fact been transferred from the Respondent to the club, Etoile du Sahel,
in July 2017 against the payment of EUR 500,000.
10. On account of the aforementioned considerations, the judge established that the
amount which the Claimant was entitled to receive pursuant to the contract,
corresponding to a percentage of the transfer fee, was in fact equivalent to a bonus.
11. Notwithstanding the above, the judge referred to the information available on the TMS,
according to which the payment of the transfer fee was to be made by Etoile du Sahel
to the Respondent, in four instalments as follows:
EUR 200,000 by 31 July 2017;
EUR 100,000 by 30 November 2017;
EUR 100,000 by 28 February 2018;
EUR 100,000 by 31 May 2018.
12. In this respect, the judge pointed out that the contract did not stipulate any due dates
for the payments to be made to the Claimant. In these circumstances, the judge deemed
that the amounts due to the Claimant, i.e. 10% of the aforementioned instalments,
should be paid by the Respondent on the last day of the month following the payment
of each instalment by Etoile du Sahel to the Respondent. Therefore, taking into account
the right of the Claimant to receive 10% of any transfer fee, the judge concluded that
the Respondent should have made the following payments to the Claimant:
EUR 20,000 by 31 August 2017;
EUR 10,000 by 31 December 2017;
EUR 10,000 by 31 March 2018;
EUR 10,000 by 30 June 2018.
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REF 20-00263/eam
13. In this context, the DRC judge referred to art. 25 par. 5 of the Regulations, according to
which the Dispute Resolution Chamber shall not hear any case subject to the Regulations
if more than two years have elapsed since the event giving rise to the dispute.
Considering that the claim of the Claimant was lodged on 10 February 2020 only, the
DRC judge found that he could not enter into any claim for amounts that fell due prior
to 10 February 2018.
14. Taking into account the previous considerations, the DRC judge preliminarily concluded
that the Claimant’s request for amounts due before the date of 10 February 2018, i.e.
EUR 20,000 to be paid by 31 August 2017 and EUR 10,000 by 31 December 2017, was
barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations.
15. Notwithstanding the above and with regard to the third and fourth instalments, the
judge established that the Respondent failed to remit to the Claimant the amounts of
EUR 10,000 and EUR 10,000, due on 31 March 2018 and 30 June 2018 respectively.
16. Consequently, the DRC judge decided that, in accordance with the general legal
principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant the
total amount of EUR 20,000.
17. In addition, taking into consideration the Claimant’s request and the constant practice
of the Dispute Resolution Chamber (DRC) judge in this regard, the judge decided to
award the Claimant interest on the above-mentioned amounts, as follows:
5% interest p.a. as from 1 April 2018 until the date of effective payment on the
amount of EUR 10,000;
5% interest p.a. as from 1 July 2018 until the date of effective payment on the
amount of EUR 10,000.
18. Having established that the Respondent is to be held liable to pay the aforementioned
amounts to the Claimant, the DRC judge was eager to emphasise that art. 12bis of the
Regulations may not apply to the present matter, considering that the amounts at the
basis of the dispute are conditional payments.
19. Furthermore, the judge referred to par. 1 and 2 of art. 24bis 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.
20. In this regard, the DRC judge pointed out 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
and for the maximum duration of three entire and consecutive registration periods.
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REF 20-00263/eam
21. Therefore, bearing in mind the above, the DRC judge decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from the
moment in which the Claimant, following the notification of the present decision,
communicates the relevant bank details to the Respondent, a ban from registering any
new players, either nationally or internationally, for the maximum duration of three
entire and consecutive registration periods shall become effective on the Respondent in
accordance with art. 24bis par. 2 and 4 of the Regulations.
22. Finally, the DRC 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. 24bis par. 3 of the Regulations.
23. The DRC judge concluded his deliberations in the present matter by establishing that
any further request filed by the Claimant is rejected.
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REF 20-00263/eam
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE
1. The claim of the Claimant, Mohamed Oumar Konaté, is partially accepted, insofar as it is
admissible.
2. The Respondent, RS Berkane, has to pay to the Claimant the amount of EUR 20,000 plus
interest at the rate of 5% p.a. as follows:
- on the amount of EUR 10,000 as from 1 April 2018 until the date of effective payment;
- on the amount of EUR 10,000 as from 1 July 2018 until the date of effective payment.
3. Any further claim lodged by the Claimant is rejected.
4. The Claimant is directed to inform the Respondent, immediately and directly, preferably
to the e-mail address as indicated on the cover letter of the present decision, of the relevant
bank account to which the Respondent must pay the amount mentioned under point 2.
above.
5. The Respondent shall provide evidence of payment of the due amount in accordance with
point 2. above to FIFA to the e-mail address [email protected], duly translated, if need be,
into one of the official FIFA languages (English, French, German, Spanish).
6. In the event that the amount due plus interest in accordance with point 2. above is not
paid by the Respondent within 45 days as from the notification by the Claimant of the
relevant bank details to the Respondent, the Respondent shall be banned from registering
any new players, either nationally or internationally, up until the due amount is paid and
for the maximum duration of three entire and consecutive registration periods (cf. art.
24bis of the Regulations on the Status and Transfer of Players).
7. The ban mentioned in point 6. above will be lifted immediately and prior to its complete
serving, once the due amount is paid.
8. In the event that the aforementioned sum plus interest is still not paid by the end of the
ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal
decision.
For the Dispute Resolution Chamber judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF 20-00263/eam
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
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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