DRC Overdue Payables
Texto da decisão
REF FPSD-6557
Decision of the
Dispute Resolution Chamber
passed on 31 August 2022
regarding an employment-related dispute concerning the player Modou Sohna
BY:
Dana MOHAMED AL-NOAIMI (Qatar), Single Judge of the DRC
CLAIMANT:
Modou Sohna, Gambia
Represented by Global Collection
RESPONDENT:
Fath Union Sport Rabat, Morocco
REF FPSD-6557
I. Facts of the case
1. The player Modou Sohna and Fath Union Sport Rabat concluded an employment contract valid as
from 1 July 2019 until 30 June 2023.
2. According to art. 5.1 of the contract the player was entitled to a sign-on fee in the amount of MAD
(Moroccan Dirham) 325,000 payable in two instalments, i.e. 50% before 31 January 2020 and 50%
before 30 June 2020.
3. On 27 June 2022, the player sent a default notice requesting the payment of his entire sign-on fee
plus interests, within 15 days.
II. Proceedings before FIFA
4. On 29 June 2022, the player Modou Sohna lodged a claim before for outstanding remuneration and
requested the payment of MAD 325,000 as overdue signing fee, plus interest as follows:
5% over 162,500 dirhams as of the 1st of February 2020 until date of effective payment
5% over 162,500 dirhams as of the 1st of July 2020 until the date of effective payment
5. In its reply, the Respondent explained that it paid MAD 214,000 on 25 November 2019 and MAD
11,000 on 25 June 2020 as sign-on fee.
6. The Claimant provided a bank account statement (Attijariwa bank) with the following cash
withdrawals:
MAD 4,000 on 5 December 2019;
MAD 214,000 on 6 December 2019;
MAD 4,000 on 15 June 2020;
MAD 4,000 on 15 June 2020;
MAD 4,000 on 15 June 2020;
MAD 4,000 on 5 September 2019;
MAD 4,000 on 27 December 2019;
MAD 4,00 on 27 February 2020;
MAD 4,000 on 31 January 2020;
MAD 3,500 on 31 July 2019;
MAD 4,000 on 5 December 2019;
MAD 4,000 on 8 November 2019;
MAD 4,000 on 3 October 2019;
7. In addition, the Respondent provided the following documents:
“Décharge”, dated 15 November 2019, allegedly signed by the player and acknowledging the having
received MAD 214,000 as the first instalment of the sign-on fee.
“Décharge”, dated 25 January 2020, allegedly signed by the player and acknowledging the having
received MAD 50,000 for the second instalment of the sign-on fee.
“Décharge”, dated 30 June 2020, allegedly signed by the player and acknowledging the having
received MAD 50,000 for the “third” instalment of the sign-on fee.
“Décharge”, dated 30 June 2020, allegedly signed by the player and acknowledging the having
received MAD 11,000 for the “fourth” instalment of the sign-on fee.
REF FPSD-6557
8. In his replica, the Claimant denied that it received the amount of MAD 214,000.
9. In this respect, the Claimant underlined that the Club has failed to submit a copy of the actual
cheque relating to the alleged payment of 214,000 MAD.
10. The Claimant further underlined that the alleged "proof of payment" or the document entitled
“decharge” dated 25.11.2019 states that the amount of 214,000 dirhams has been paid in cash whilst
as per the provided bank statement the Club alleges that the amount of 214.000,00 MAD has been
paid by cheque. In the opinion of the Claimant, this fact reveals a contradiction.
11. Moreover, the Claimant pointed-out that, if one compares the signature and the fingerprint on the
"decharge document" dd. 25.11.2019 related to the alleged payment of the 214,000 MAD, with the
signature and fingerprint on all other documents submiedby the Club, it is very clear that the
signature and fingerprint on the document related to the 214,000 MAD are rather different in terms
of size and colour.
12. However, the Claimant acknowledged the payment of MAD 100,000 on 25 June 2020, and requested
to attribute it to the first instalment.
13. As a result, the Claimant modified his request and requested the payment of MAD 225,000, i.e.
- MAD 62,500 for the instalment due on 31 January 2020;
- MAD 162,500 for the instalment due on 30 June 2020.
14. The Claimant further requested the payment of the procedural costs.
REF FPSD-6557
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 Single
Judge) analysed whether she was competent to deal with the case at hand. In this respect, she took
note that the present matter was presented to FIFA on 29 June 2022 and submitted for decision on
31 August 2022. Taking into account the wording of art. 34 of the June 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 and art. 24 par. 1 lit. a) 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 2022 edition), she is competent to deal
with the matter at stake, which concerns an employment-related dispute with an international
dimension between a Gambian player and a Moroccan club.
3.
Subsequently, the Single Judge analysed which regulations should be applicable as to the substance
of the matter. In this respect, she confirmed that, in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (June 2022 edition), and considering that the
present claim was lodged on 29 June 2022, the June 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 she may consider evidence not filed by the parties,
including without limitation the evidence generated by or within the Transfer Matching System
(TMS).
c.
Admissibility
5.
At this point, the Single Judge referred to art. 23 par. 3 of the Regulations, which stipulates that the
decision-making bodies of FIFA shall not hear any dispute if more than two years have elapsed since
the facts leading to the dispute arose. The application of this time limit shall be examined ex officio
in each individual case.
6.
In this context, the Single Judge recalled that the present claim was lodged in front of FIFA on 29
June 2022. Therefore, in line with art. 23 par. 3of the Regulations, any amounts fallen due before 29
June 2020 are affected by the statute of limitations.
REF FPSD-6557
7.
The Single Judge noted that, in the present case, the Claimant inter alia requested the payment of
the following instalments of the signing fee:
8.
-
MAD 162,500, due on 1 February 2020;
-
MAD 162,500, due on 1 July 2020.
The Single Judge thus concluded that the Claimant’s request is partially time-barred. Consequently,
the specific part of the Claimant’s claim related to the payment due on 1 February 2020 is considered
inadmissible.
d. Merits of the dispute
9.
Her 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 she will refer only to the facts, arguments
and documentary evidence, which she considered pertinent for the assessment of the matter at
hand.
i. Main legal discussion and considerations
10. First of all, the Chamber noted that the player Modou Sohna and Fath Union Sport Rabat concluded
an employment contract valid as from 1 July 2019 until 30 June 2023.
11. Subsequently, the Chamber took note that the Claimant lodged a claim before FIFA and requested
the payment of, inter alia, MAD 162,500 for the instalment due on 30 June 2020. The Chamber
insisted once again that the request for the instalment due on 1 February 2020 appears to be timebarred.
12. On the other hand, the Single Judge observed that, in its reply, the Respondent provided a series of
documents by means of which it would prove that the signing fee was fully paid (cf. point 7 above).
13. In view of the above, the Single Judge considered that the main issue at stake is to determine the
exact amount (if any) from the instalment due on 30 June 2020 that was still overdue.
14. Therefore, the Single Judge analyzed the evidence presented by the club, and noted that it can be
categorized in three types: bank statements, documents referred to as “décharge” (waivers”) and
cheques.
15. In relation to the bank statements, the Single Judge observed that said documents only express cash
withdrawals from a bank account. Thus, they do not prove that the player received the amount from
these withdrawals
REF FPSD-6557
16. As to the documents labelled as “décharge”, the Single judge observed that they contain partially
visible signatures which do not correspond to the signatures of the player.
17. For example, in the power of attorney attached by the Claimant during the proceedings, the
signature of the player appears as follows:
18. However, in the documents referred to as “décharge”, it appearsas follows:
19. In the opinion of the Judge, and from the perspective of a layman, the aforementioned signatures
appear to be clearly different. Therefore, the Judge decided to not take said documents into account.
20. Finally, in relation to the cheques, the Single Judge observed that none of the provided cheques
prove the payment of the sign-on fee since, in fact, they are all related to minor amounts of MAD
4,000.
21. In view of the above, given that the evidence provided by the club appears to be unconvincing, the
Single Judge decided to award to the Claimant the outstanding amount of MAD 162,500,
corresponding to the amount due on 30 June 2020, in application of the principle of pacta sunt
servanda.
22. Moreover, taking into account the request of the Claimant as well as the longstanding jurisprudence
in this regard, the Single Judge of the PSC decided to award 5% interest p.a. over said amount as
from the due date.
ii. Compliance with monetary decisions
23. 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.
24. 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.
25. Therefore, bearing in mind the above, the Single Judge decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification of the
REF FPSD-6557
decision, failing which, at the request of the creditor, 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 club in accordance with art. 24 par. 2, 4, and 7 of
the Regulations.
26. The club shall make full payment (including all applicable interest) to the bank account provided by
the player in the Bank Account Registration Form.
27. 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.
28. 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.
29. 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.
30. 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.
31. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations she has
competence to impose sanctions on the club. On account of the above and bearing in mind that this
is the first offense by the club within the last two years, the Single Judge decided to impose a warning
on the club in accordance with art. 12bis par. 4 lit. a) of the Regulations.
32. 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.
e.
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. Furthermore, 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 her deliberations by rejecting any other requests for relief made
by any of the parties.
REF FPSD-6557
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Modou Sohna, is accepted insofar it is admissible.
2.
The Respondent, Fath Union Sport Rabat, has to pay to the Claimant, the outstanding
amount of MAD 162,500 plus 5% interest p.a. as from 1 July 2020 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.
2.
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.
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.
8.
A warning (art. 12 bis of the Regulations) is imposed on the Respondent.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-6557
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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