DRC Overdue Payables
Texto da decisão
REF. FPSD-15782
Decision of the
Dispute Resolution Chamber
passed on 8 October 2024
regarding an employment-related dispute concerning the Player
Kwame Opoku
BY:
Andre DOS SANTOS MEGALE (Brazil)
CLAIMANT:
Kwame Opoku, Ghana
Represented by Mr Jonás Vallina
RESPONDENT:
OCK (Olympique Club de Khourigba), Morocco
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REF. FPSD-15782
I. Facts of the case
1.
On 29 January 2023, the Ghanaian player Kwame Opoku (hereinafter: Claimant or player)
and the Moroccan club Olympic Club de Khourigba (hereinafter: club or Respondent)
concluded an employment contract (hereinafter: the Contract) valid as from the date of
signature until 30 June 2023.
2.
On 14 June 2023, the Claimant and the Respondent extended the Contract for “another
season” (cf. Transfer Matching System: end of 2023 / 2024 season in Morocco =
30 June 2024).
3.
According to art. 4 of the Contract, the Respondent undertook to pay the Claimant inter alia
the following remuneration:
-
4.
MAD 12,000 net monthly salary;
MAD 500,000 bonus during the first season (“prime de rendement”);
(upon renewal, in the “second season”) MAD 600,000 bonus (“Prime de rendement”);
MAD 3,000 monthly accommodation bonus.
On 14 August 2024, the Claimant put the Respondent in default of the amount of
MAD 776,000, corresponding to the amounts outlined below, and granting a deadline of 10
days:
-
MAD 36,000, i.e., three monthly salaries from the season 2022-2023;
MAD 120,000, i.e., the remainder of the seasonal bonus for 2022-2023 (original amount
being MAD 500,000);
MAD 120,000, i.e., the integral salaries for the season 2023-2024;
MAD 500,000, i.e., remainder of the seasonal bonus for 2023-2024.
II. Proceedings before FIFA
5.
On 27 August 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
a. Position of the Claimant
6.
In his claim, the player argued that the Respondent failed to comply with the financial
obligations of the Contract.
7.
More specifically, the Claimant outlined that the Respondent failed to pay three salaries for
the 2022-2023 season, requesting interest as from 30 June 2023 – i.e., the end of that
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REF. FPSD-15782
season. The same request for interest was formulated regarding the remainder of the
seasonal bonus for the 2022-2023 season.
8.
Furthermore, the Claimant argued that the entire remuneration (including salaries over 12
months and a large part of the seasonal bonus) remained outstanding for 2023-2024. Such
amount was requested with interest as from 30 June 2024.
9.
Thus, the outstanding amount requested by the Claimant was MAD 776,000 together with
interest as outlined above.
b. Position of the Respondent
10. Despite having been invited to do so, the Respondent failed to provide a position to the
claim.
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REF. FPSD-15782
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. 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, it took
note that the present matter was presented to FIFA on 27 August 2024 and submitted for
decision on 8 October 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.
12. 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
Regulations on the Status and Transfer of Players (June 2024 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 Ghanaian player
and a Moroccan club.
13. 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 on the Status and Transfer of Players (June 2024 edition), and
considering that the present claim was lodged on 27 August 2024, the June 2024 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
14. 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
15. 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.
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REF. FPSD-15782
i. Main legal discussion and considerations
16. The Single Judge then moved to the substance of the matter, and took note of the fact that
the basis of the present dispute was the alleged non-payment of certain amounts
stipulated under the Contract between the parties.
17. In this context, the Single Judge acknowledged that his task was to determine whether the
amounts in dispute indeed remained unpaid, if so whether the Respondent had a valid
justification for defaulting thereon, and what the consequences of such potential default
may be.
18. The Single Judge noted that the Respondent bore the burden of proving that the amounts
had been remitted, and that it complied with its contractual obligations as required.
Notwithstanding, by failing to provide a response to the claim, the non-payment of the
disputed amounts remained uncontested by the Respondent.
19. Furthermore, the Respondent’s failure to provide a response entailed that no justification
for such non-payment could be established in the case at hand.
20. Lastly, the Single Judge recalled that the amounts in dispute were all clearly contractually
based, consisting of salaries and seasonal bonuses which appeared to be payable
unconditionally to the Claimant pursuant to the wording of the Contract.
21. Consequently, the Single Judge decided to award the total amount of MAD 776,000 in
accordance with pacta sunt servanda to the Claimant as outstanding remuneration.
22. Moreover, the Single Judge decided to award interest on the above amount in line with the
Football Tribunal’s constant practice and the Claimant’s request for relief, as follows:
-
On the amount of MAD 156,000, as from 1 July 2023 until the date of effective
payment;
On the amount of MAD 620,000, as from 1 July 2024 until the date of effective
payment.
ii. Application of art. 12bis RSTP
23. 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.
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REF. FPSD-15782
24. 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.
25. 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.
26. The Single Judge 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 2nd offense related to overdue payables by the club within the last two
years, the Single Judge decided to impose a reprimand on the club in accordance with art.
12bis par. 4 lit. a) of the Regulations.
27. 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.
iii. Compliance with monetary decisions
28. 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.
29. 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.
30. 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.
31. 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.
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REF. FPSD-15782
32. 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
33. 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.
34. 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.
35. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for
relief made by any of the parties.
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REF. FPSD-15782
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Kwame Opoku, is partially accepted.
2.
The Respondent, OCK (Olympique Club de Khourigba), must pay to the Claimant the
following amount(s):
- MAD 776,000 as outstanding remuneration plus 5% interest p.a. as follows:
- 5% interest p.a. over the amount of MAD 156,000 as from 1 July 2023 until the date of
effective payment;
- 5% interest p.a. over the amount of MAD 620,000 as from 1 July 2024 until the date of
effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A reprimand 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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REF. FPSD-15782
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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