Labour Disputes
Texto da decisão
REF. FPSD-16016
Decision of the
Dispute Resolution Chamber
passed on 26 November 2024
regarding an employment-related dispute concerning the
player Dramane Nikiema
BY:
Alejandro ATILIO TARABORELLI (Argentina & Italy)
CLAIMANT:
Dramane Nikiema, Burkina Faso
Represented by FIFPro Division Africa
RESPONDENT:
Horoya Athletic Club, Guinea
pg. 2
REF. FPSD-16016
I. Facts of the case
1.
According to the information provided by the Fédération Guinéenne de Football (FGF), on 1
September 2022 the Burkinabé player Dramane Nikiema (hereinafter, the Claimant or the
Player) and the Guinean club Horoya Athletic Club (hereinafter, the Respondent or the Club)
concluded an employment contract (hereinafter, the Contract) valid as from 1 September
2022 until 31 August 2024.
2.
Pursuant to Clause 6.1 of the Contract, the Club undertook to pay the Player a monthly
remuneration of GNF 40,000,000 net.
II. Proceedings before FIFA
3.
On 12 September 2024, the Player filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
a. Position of the Claimant
4.
According to the Player, the Club failed to comply with its financial obligations under the
Contract. In particular, the Player sustained that the Club failed to pay him his monthly
remuneration as follows:
- GNF 40,000,000 as September 2022 salary;
- GNF 40,000,000 as October 2022 salary;
- GNF 40,000,000 as November 2022 salary;
- GNF 40,000,000 as December 2022 salary;
- GNF 40,000,000 as February 2023 salary;
- GNF 40,000,000 as April 2023 salary;
- GNF 40,000,000 as May 2023 salary;
- GNF 40,000,000 as June 2023 salary;
- GNF 40,000,000 as July 2023 salary;
- GNF 40,000,000 as August 2023 salary;
- GNF 40,000,000 as September 2023 salary;
- GNF 40,000,000 as October 2023 salary;
- GNF 40,000,000 as November 2023 salary;
- GNF 40,000,000 as December 2023 salary;
- GNF 40,000,000 as January 2024 salary;
- GNF 40,000,000 as February 2024 salary;
- GNF 40,000,000 as March 2024 salary;
- GNF 40,000,000 as April 2024 salary;
- GNF 40,000,000 as May 2024 salary;
- GNF 40,000,000 as June 2024 salary;
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REF. FPSD-16016
- GNF 40,000,000 as July 2024 salary; and
- GNF 40,000,000 as August 2024 salary.
5.
The Player requested the following relief:
“As a consequence of all of the above, the Player is requesting the FIFA DRC to sanction the club
on the basis of art. 12bis of the FIFA RSTP and to order the Club to pay him the following amounts
for a total of GNF 920 000 000:
- GNF 40 000 000 for the salary of September 2022, + 5% interest p.a. as of 1 October 2022.
- GNF 40 000 000 for the salary of October 2022, + 5% interest p.a. as of 1 November 2022.
- GNF 40 000 000 for the salary of November 2022, + 5% interest p.a. as of 1 December 2022.
- GNF 40 000 000 for the salary of December 2022, + 5% interest p.a. as of 1 January 2023.
- GNF 40 000 000 for the salary of February 2023, + 5% interest p.a. as of 1 March 2023.
- GNF 40 000 000 for the salary of April 2023, + 5% interest p.a. as of 1 May 2023.
- GNF 40 000 000 for the salary of May 2023, + 5% interest p.a. as of 1 June 2023.
- GNF 40 000 000 for the salary of June 2023, + 5% interest p.a. as of 1 July 2023.
- GNF 40 000 000 for the salary of July 2023, + 5% interest p.a. as of 1 August 2023.
- GNF 40 000 000 for the salary of August 2023, + 5% interest p.a. as of 1 September 2023.
- GNF 40 000 000 for the salary of September 2023, + 5% interest p.a. as of 1 October 2023.
- GNF 40 000 000 for the salary of October 2023, + 5% interest p.a. as of 1 November 2023.
- GNF 40 000 000 for the salary of November 2023, + 5% interest p.a. as of 1 December 2023.
- GNF 40 000 000 for the salary of December 2023, + 5% interest p.a. as of 1 January 2024.
- GNF 40 000 000 for the salary of January 2024, + 5% interest p.a. as of 1 February 2024.
- GNF 40 000 000 for the salary of February 2024, + 5% interest p.a. as of 1 March 2024.
- GNF 40 000 000 for the salary of March 2024, + 5% interest p.a. as of 1 April 2024.
- GNF 40 000 000 for the salary of April 2024, + 5% interest p.a. as of 1 May 2024.
- GNF 40 000 000 for the salary of May 2024, + 5% interest p.a. as of 1 June 2024.
- GNF 40 000 000 for the salary of June 2024, + 5% interest p.a. as of 1 July 2024.
- GNF 40 000 000 for the salary of July 2024, + 5% interest p.a. as of 1 August 2024.
- GNF 40 000 000 for the salary of August 2024, + 5% interest p.a. as of 1 September 2024”.
b. Position of the Respondent
6.
Despite being invited to do so, the Club failed to reply to the claim.
pg. 4
REF. FPSD-16016
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
7.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter, the Single 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 12 September 2024 and submitted
for decision on 26 November 2024. Taking into account the wording of art. 34 of the March
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.
8.
Furthermore, 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 par. 1 lit. b) of the October
2024 edition of the Regulations on the Status and Transfer of Players (hereinafter, the
Regulations), he is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Burkinabe player
and a Guinean club.
9.
Subsequently, the Single 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 2 of the Regulations (October 2024 edition), and considering that the present claim
was lodged on 12 September 2024, the June 2024 edition of said Regulations is applicable
to the matter at hand as to the substance.
b. Burden of proof
10. 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 he 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
11. Having established the competence and the applicable regulations, 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 he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for assessing the matter at hand.
pg. 5
REF. FPSD-16016
i. Main legal discussion and considerations
12. The Single Judge then moved to the substance of the matter, and took note of the fact that
it concerned a claim from a player against a club for outstanding remuneration. In this
respect, the Single Judge noted that, according to the Player, the Club failed to pay his
remuneration throughout the duration of the Contract. In particular, the Single Judge
observed that the Player claimed being entitled to his remuneration for September to
December 2022, for February 2023, for April to December 2023, and for January to August
2024, in the total amount of GNF 920,000,000.
13. On the other hand, the Single Judge took into account that the Club, for its part, did not
submit a response to the Player’s claim, despite having been invited to do so. The Single
Judge therefore considered that the Club had waived its right of defence and had thus
accepted the Player’s allegations. The Single Judge also confirmed that, based on art. 21
par. 1 of the Procedural Rules, he should reach his decision based on the file.
14. In this respect, and in the absence of any evidence to disprove the Player’s allegations, the
Single Judge concluded that the Club failed to pay him the monthly remuneration claimed
which, however, amounted to GNF 880,000,000.
15. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda,
which in essence means that agreements must be respected by the parties in good faith,
the Respondent is held liable to pay the Claimant the outstanding amounts deriving from
the contract concluded between the parties, namely GNF 40,000,000 per month for
September to December 2022, for February 2023, from April to December 2023, and from
January to August 2024, in the total amount of GNF 880,000,000.
16. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard, the Single Judge decided to award the
Player interest at a rate of 5% per annum as from the day following the due date of each
monthly instalments until the date of effective payment.
ii. Compliance with monetary decisions
17. 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.
18. 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
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REF. FPSD-16016
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.
19. 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.
20. 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.
21. 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
22. 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
23. 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.
24. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 7
REF. FPSD-16016
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Dramane Nikiema, is partially accepted.
2.
The Respondent, Horoya Athletic Club, must pay to the Claimant the following amount(s):
GNF 880,000,000 as outstanding remuneration plus 5% interest per annum as follows:
- 5% interest p.a. over the amount of GNF 40,000,000 as from 1 October 2022 until the
date of effective payment;
- 5% interest p.a. over the amount of GNF 40,000,000 as from 1 November 2022 until
the date of effective payment;
- 5% interest p.a. over the amount of GNF 40,000,000 as from 1 December 2022 until
the date of effective payment;
- 5% interest p.a. over the amount of GNF 40,000,000 as from 1 January 2023 until the
date of effective payment;
- 5% interest p.a. over the amount of GNF 40,000,000 as from 1 March 2023 until the
date of effective payment;
- 5% interest p.a. over the amount of GNF 40,000,000 as from 1 May 2023 until the date
of effective payment;
- 5% interest p.a. over the amount of GNF 40,000,000 as from 1 June 2023 until the date
of effective payment;
- 5% interest p.a. over the amount of GNF 40,000,000 as from 1 July 2023 until the date
of effective payment;
- 5% interest p.a. over the amount of GNF 40,000,000 as from 1 August 2023 until the
date of effective payment;
- 5% interest p.a. over the amount of GNF 40,000,000 as from 1 September 2023 until
the date of effective payment;
- 5% interest p.a. over the amount of GNF 40,000,000 as from 1 October 2023 until the
date of effective payment;
- 5% interest p.a. over the amount of GNF 40,000,000 as from 1 November 2023 until
the date of effective payment;
pg. 8
REF. FPSD-16016
- 5% interest p.a. over the amount of GNF 40,000,000 as from 1 December 2023 until
the date of effective payment;
- 5% interest p.a. over the amount of GNF 40,000,000 as from 1 January 2024 until the
date of effective payment;
- 5% interest p.a. over the amount of GNF 40,000,000 as from 1 February 2024 until the
date of effective payment;
- 5% interest p.a. over the amount of GNF 40,000,000 as from 1 March 2024 until the
date of effective payment;
- 5% interest p.a. over the amount of GNF 40,000,000 as from 1 April 2024 until the date
of effective payment;
- 5% interest p.a. over the amount of GNF 40,000,000 as from 1 May 2024 until the date
of effective payment;
- 5% interest p.a. over the amount of GNF 40,000,000 as from 1 June 2024 until the date
of effective payment;
- 5% interest p.a. over the amount of GNF 40,000,000 as from 1 July 2024 until the date
of effective payment;
- 5% interest p.a. over the amount of GNF 40,000,000 as from 1 August 2024 until the
date of effective payment; and
- 5% interest p.a. over the amount of GNF 40,000,000 as from 1 September 2024 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, 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.
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REF. FPSD-16016
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. 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
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REF. FPSD-16016
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
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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