DRC Overdue Payables
Texto da decisão
REF FPSD-3043
Decision of the
Dispute Resolution Chamber
passed on 14 October 2021
regarding an employment-related dispute concerning the player Mohamed
Oumar Konate
BY:
Frans de Weger (The Netherlands), Chairperson
Roy Vermeer (The Netherlands), member
José Luis Andrade (Portugal), member
CLAIMANT:
Mohamed Oumar Konate, Mali
Represented by Jan Schweele
RESPONDENT:
Etoile Sportive du Sahel, Tunisia
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REF FPSD-3043
I.
Facts of the case
1.
On 21 July 2017, the Malian player, Mohamend Oumar Konate (hereinafter: the player or the
Claimant) and the Tunisian club, Etoile Sportive du Sahel (hereinafter: the club or the
Respondent) signed an employment contract valid as from the same date until 30 June 2021
(hereinafter: the contract).
2.
According to the contract, the player was entitled to the following:
Seasons 1, 2 and 3:
a. A yearly salary of EUR 200,000 net payable in 12 monthly instalments in local currency;
b. A fixed bonus of EUR 200,000 net payable each season in local currency, namely 31 July
2017, 31 July 2018 and 31 July 2019;
Season 4
a. A yearly salary of EUR 250,000 net payable in 12 monthly instalments in local currency;
b. A fixed bonus of EUR 250,000 net payable by 31 July 2020 in local currency.
3.
Under the contract the club undertook to pay to the player housing costs (water, electricity),
medical assistance, and medical insurance.
4.
On 22 September 2020, the player received an electricity bill of TND 1,721.
5.
On 13 July 2020, the player filed a claim against the club before the FIFA Dispute Resolution
Chamber (DRC), seeking payment of EUR 100,000 corresponding to the unpaid portion of
his bonus, due on 31 July 2018. Such case was filed under reference number 20-00988.
6.
On 23 September 2020, the DRC Judge partially accepted the player’s claim and ordered the
club inter alia to pay the aforementioned amount.
7.
On an unspecified date, the parties signed a settlement agreement (hereinafter: the
settlement agreement). Pursuant to the settlement agreement, the club inter alia undertook
to pay to the player EUR 60,000 by 30 June 2021, under penalty of paying a fine.
8.
On 2 July 2021, the player lodged a second claim against the club before the FIFA DRC. Such
case was filed under reference number FPSD-2957.
9.
On 21 July 2021, following a proposal by the FIFA general secretariat, a confirmation letter
was sent to the parties pursuant to which inter alia the club was ordered to pay EUR
71,098.93 to the player.
10. On 1 July 2021, the player put the club in default of payment of EUR 675,052.58,
corresponding to the amounts detailed below. The club was awarded 10 days to cure its
default, to no avail:
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a. EUR 450,000 as bonuses due on 31 July 2019 and 31 July 2020;
b. EUR 224,527.46 as salaries;
c. EUR 525.12 as electricity costs.
11. On 13 July 2021, the player filed the claim at hand, seeking payment of his outstanding
remuneration of EUR 675,052.58, as follows:
a. EUR 200,000 corresponding to the Annual Bonus due on 31 July 2019;
b. EUR 250,000 corresponding to the Annual Bonus due on 31 July 2020;
c. EUR 16,666.67 corresponding to the salary of September 2019;
d. EUR 15,707.82 corresponding to the remaining part of the salary of March 2020;
e. EUR 16,666.67 corresponding to the salary of May 2020;
f. EUR 8,339.11 corresponding to the remaining part of the salary of June 2020;
g. EUR 12,509.63 corresponding to the remaining part of the salary of July 2020;
h. EUR 20,833.33 corresponding to the salary of August 2020;
i. EUR 20,833.33 corresponding to the salary of December 2020;
j. EUR 20,833.33 corresponding to the salary of January 2021;
k. EUR 20,833.33 corresponding to the salary of February 2021;
l. EUR 8,804.23 corresponding to the remaining part of the salary of March 2021;
m. EUR 20,833.33 corresponding to the salary of April 2021;
n. EUR 20,833.33 corresponding to the salary of May 2021;
o. EUR 20,833.33 corresponding to the salary of June 2021.
p. EUR 525.12 corresponding to an electricity bill paid by the Claimant.
12. The player further asks to be awarded 5% interest p.a. on said amounts as from their due
dates until the date of effective payment, and that the club is sanctioned in line with art.
12bis of the FIFA Regulations on the Status and Transfer of Players (RSTP).
13. In spite of having been invited to do so, the Respondent did not file a reply to the player’s
claim.
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. First of all, the Dispute Resolution Chamber (hereinafter also referred to as 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 13 July 2021 and submitted for decision on
14 October 2021. Taking into account 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.
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15. Subsequently, the members of 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 lit. b) of the
Regulations on the Status and Transfer of Players (August 2021 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 player and a
Tunisian club.
16. 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 Player (August 2021 edition), and
considering that the present claim was lodged on 13 July 2021, the February 2021 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
17. 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
18. 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
19. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the Respondent, for its part, failed to present its response to
the claim of the Claimant, in spite of having been invited to do so. In this way, the DRC
considered that the Respondent renounced its right to defence and thus accepted the
allegations of the Claimant.
20. Furthermore, as a consequence of the aforementioned consideration, the members of the
Chamber concurred that in accordance with art. 21 par. 1 and 22 of the Procedural Rules,
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they shall take a decision upon the basis of the documents on file, in other words, upon the
statements and documents presented by the Claimant.
21. Having said this, the DRC acknowledged that, in accordance with the contract signed by and
between the parties, the Respondent was obliged to pay to the Claimant the following
amounts:
Seasons 1, 2 and 3:
a. A yearly salary of EUR 200,000 net payable in 12 monthly instalments in local currency;
b. A fixed bonus of EUR 200,000 net payable each season in local currency, namely 31 July
2017, 31 July 2018 and 31 July 2019;
Season 4
a. A yearly salary of EUR 250,000 net payable in 12 monthly instalments in local currency;
b. A fixed bonus of EUR 250,000 net payable by 31 July 2020 in local currency.
22. Taking into account the documentation presented by the Claimant in support of his petition,
the DRC concluded that the Claimant had substantiated his claim pertaining to overdue
payables with sufficient documentary evidence, with the exception of the electricity bill. In
fact, the DRC confirmed that the player filed a copy of an electricity bill for TND 1,721, but
filed no evidence of having in fact paid such amount. Accordingly, the DRC found that the
player did not meet his burden of proof in this regard.
23. On account of the aforementioned considerations, the DRC established that the Respondent
failed to remit the Claimant’s remuneration in accordance with the contract concluded
between the parties. In addition, taking into account the Claimant’s request as well as the
constant practice of the Dispute Resolution Chamber, the latter decided that the Respondent
must pay to the Claimant interest of 5% p.a. on the amounts outstanding as from their due
dates until the date of effective payment.
24. Based on the foregoing and in accordance with the principle pacta sunt servanda, the DRC
awarded the following amounts to the player:
a. EUR 200,000 as outstanding remuneration plus 5% interest p.a. on said amount as from
31 July 2019 until the date of effective payment;
b. EUR 250,000 as outstanding remuneration plus 5% interest p.a. on said amount as from
31 July 2020 until the date of effective payment;
c. EUR 16,666.67 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 October 2019 until the date of effective payment;
d. EUR 15,707.82 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 April 2020 until the date of effective payment;
e. EUR 16,666.67 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 June 2020 until the date of effective payment;
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f. EUR 8,339.11 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 July 2020 until the date of effective payment;
g. EUR 12,509.63 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 August 2020 until the date of effective payment;
h. EUR 20,833.33 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 September 2020 until the date of effective payment;
i. EUR 20,833.33 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 January 2021 until the date of effective payment;
j. EUR 20,833.33 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 February 2021 until the date of effective payment;
k. EUR 20,833.33 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 March 2021 until the date of effective payment;
l. EUR 8,804.23 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 April 2021 until the date of effective payment;
m. EUR 20,833.33 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 May 2021 until the date of effective payment;
n. EUR 20,833.33 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 June 2021 until the date of effective payment;
o. EUR 20,833.33 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 July 2021 until the date of effective payment.
ii. Art. 12bis of the Regulations
25. Having established the above, the DRC 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.
26. To this end and conversely to the club’s argumentation, the DRC confirmed that the player
put the club in default of payment of the amounts sought, which had fallen due for more
than 30 days, and granted the club with 10 days to cure such breach of contract.
27. Accordingly, the DRC 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.
28. The DRC 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 4th offense by the club, the DRC decided to impose a fine of USD 37,500 and
a reprimand on the club in accordance with art. 12bis par. 4 lit. b) and d) of the Regulations.
29. In this connection, the DRC highlighted 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.
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iii. Compliance with monetary decisions
30. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
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.
31. 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.
32. Therefore, bearing in mind the above, the DRC 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. 24bis par. 2, 4, and 7 of the Regulations.
33. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form, which is attached to the
present decision.
34. 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. 24bis par. 8 of
the Regulations.
d. Costs
35. 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.
36. 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.
37. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Mohamed Oumar Konate, is partially accepted.
2.
The Respondent, Etoile Sportive du Sahel, has to pay to the Claimant the following amounts:
a. EUR 200,000 as outstanding remuneration plus 5% interest p.a. on said amount as from
31 July 2019 until the date of effective payment;
b. EUR 250,000 as outstanding remuneration plus 5% interest p.a. on said amount as from
31 July 2020 until the date of effective payment;
c. EUR 16,666.67 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 October 2019 until the date of effective payment;
d. EUR 15,707.82 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 April 2020 until the date of effective payment;
e. EUR 16,666.67 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 June 2020 until the date of effective payment;
f. EUR 8,339.11 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 July 2020 until the date of effective payment;
g. EUR 12,509.63 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 August 2020 until the date of effective payment;
h. EUR 20,833.33 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 September 2020 until the date of effective payment;
i. EUR 20,833.33 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 January 2021 until the date of effective payment;
j. EUR 20,833.33 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 February 2021 until the date of effective payment;
k. EUR 20,833.33 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 March 2021 until the date of effective payment;
l. EUR 8,804.23 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 April 2021 until the date of effective payment;
m. EUR 20,833.33 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 May 2021 until the date of effective payment;
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n. EUR 20,833.33 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 June 2021 until the date of effective payment;
o. EUR 20,833.33 as outstanding remuneration plus 5% interest p.a. on said amount as from
1 July 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. 24bis of the Regulations on the Status and Transfer of Players (February 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. 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.
▪
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
7.
A fine of USD 37,500 and a reprimand are imposed on the Respondent. Such fine is to be
paid by the Respondent to FIFA to the bank account indicated below within 30 days of
notification of this decision, with a clear mention the applicable reference number.
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230 IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
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).
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