Dispute Resolution Chamber
Texto da decisão
REF 20-01579
Decision of the
DRC Judge
passed on 7 April 2021,
regarding an employment-related dispute concerning the player Oumare Tounkara
COMPOSITION:
Jon Newman (USA)
CLAIMANT:
Oumare Tounkara, France
Represented by Mr. Penny Ap. Konitsioti
RESPONDENT:
AFC Astra, Romania
Page 2 of 7
REF 20-01579
I. FACTS OF THE CASE
1. On 26 July 2019, the parties concluded an employment contract (hereinafter: the contract) valid
as from the date of signature until 15 June 2021.
2. On 8 January 2020, the parties signed a termination agreement.
3. Art. 2 of the termination agreement states the following:
“The club recognises that it owes the player a sum of 43,000 euros net, at the date of signing
the present and the player agrees that this amount will be paid until March 25th 2020.
If the amount specified is not going to be paid in 5 days since the date of payment, from the
amount owed, the Club will pay a penalty of 3% each delaying month until the date of payment”.
4. Article 3 of the termination agreement states that:
“The two parties no longer have any financial or other claims, one against the other, past, present
or future, arising from and in connection with the contract of sports activity, except for the
amount mentioned in point 2”
5. On 25 May 2020, the Claimant sent a default notice to the Respondent and requested payment
of an overall amount of EUR 46,870 within 15 days in accordance with 12bis.
6. On 27 October 2020, the Claimant filed a claim against the Respondent before FIFA requesting
the following:
- EUR 43,000 as outstanding remuneration;
- EUR 10,320 as the 3% penalty fee (EUR 1,290) per each month of delay (March to October);
7. In support of his claim, the Claimant submitted that in spite of the fact that he had fully complied
with his contractual obligations as a professional football player and the fact that more than 7
months had passed since he had signed the termination agreement, the Respondent has to this
date not paid his outstanding salaries despite reminders to do so.
8. As a result, the Claimant submitted that the Respondent should pay him in accordance with the
termination agreement as indicated above.
9. In its response, the Respondent rejected the claim of the Claimant and stated that the amount
due had already been paid.
10. In support of this, the Respondent attached a payment order issued on 29 May 2020, for the
amount of Romanian Lei (RON) 208,210, which is the equivalent of EUR 43,000.
11. The Respondent added that the payment order is stamped and signed by its bank on 18
November 2020, which confirms that the transaction was executed.
Page 3 of 7
REF 20-01579
12. The Respondent concluded that given the fact that the payment was made before the submission
of the claim, the Claimant has acted in bad faith and that as a result, the claim should be rejected
as it is ungrounded.
13. In his final position, the Claimant stated that having checked his bank account in Romania,
confirmed that he had indeed received on 29 May 2020, the equivalent of EUR 43.000.
14. Nonetheless, the Claimant insisted that the payment was due on 25 March 2020 and therefore
the club had a delay of 2 months and as a result he is entitled to the contractually agreed 3% for
late payment in the amount of EUR 3,870 as follows:
- EUR 1,290 for March 2020;
- EUR 1,290 for April 2020;
- EUR 1,290 for May 2020.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as `the DRC Judge`) analysed
whether he was competent to deal with the case at hand. In this respect, he took note that the
Claimant’s claim was lodged on 27 October 2020 and was decided on 7 April 2021. Taking into
account the wording of art. 21 of the 2021 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural
Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.
2. Subsequently, the DRC 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 (edition October 2020), he is competent to deal with the
matter at stake, which concerns an employment-related dispute with an international dimension
between a French player and a Romanian club.
3. Furthermore, the DRC Judge analyzed 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 (edition February 2021), and considering
that the present claim was lodged on 27 October 2020, the October 2020 edition of said
regulations (hereinafter: the 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
DRC Judge entered into the substance of the matter. Subsequently, the DRC Judge continued by
acknowledging the above-mentioned facts as well as the documentation contained in the file in
relation to the substance of the matter. However, the DRC Judge emphasized that in the
following considerations he will refer only to the facts, arguments and documentary evidence,
which it considered pertinent for the assessment of the matter at hand.
5. Entering into the substance of the matter at hand, the DRC Judge first of all acknowledged that
the parties to the dispute had concluded an employment contract valid from 26 July 2019 until
15 June 2021.
Page 4 of 7
REF 20-01579
6. Furthermore, the DRC Judge noted that on 8 January 2020, the parties entered into a termination
agreement pursuant to which the club agreed to pay the outstanding amount of EUR 43,000 by
25 March 2020 and that if the amount specified is not paid in 5 days from the due date, the
Respondent will pay a penalty of 3% each delaying month until the date of payment.
7. Having recalled the above, the DRC Judge observed that, the Claimant, in his claim lodged on 27
October 2020, claimed EUR 43,000 as outstanding remuneration and EUR 10,320 as the agreed
3% penalty (EUR 1,290) per each month of delay from March to October 2020.
8. In continuation, the DRC Judge took note of the Respondent’s submission that the outstanding
amount of EUR 43,000 had already been paid to the Claimant on 29 May 2020 and that this was
confirmed by the Claimant in his final position.
9. However, the DRC Judge also took note of the fact that the Claimant confirmed having received
the amount of EUR 43,000, but also submitted that the 3% penalty fee of EUR 3,870 (EUR 1,290
per month from March to May 2020) was still outstanding in accordance with the termination
agreement.
10. In this regard, the DRC Judge recalled that in accordance with FIFA long standing jurisprudence,
the penalty fee as established by the parties is to be considered as a hidden interest, which is
applicable on a monthly basis. Moreover, the DRC Judge added that – based on the wellestablished jurisprudence of the DRC as well as Swiss law - the rate stipulated by the parties is to
be considered o excessive.
11. With the above in mind, the DRC Judge determined that the penalty fee (i.e. interest) should be
reduced to a rate of 18% p.a., corresponding to 1.5% per month.
12. Consequently, taking into account the fact that the outstanding amount was due by 25 March
2020 and that the Respondent made payment on 29 May 2020, the DRC Judge concluded that
the amount was outstanding for 2 months and as a result, the Claimant is entitled to the amount
of EUR 1,290, calculated as follows: 1.5% of EUR 43,000 = EUR 645, multiplied by 2 months.
13. In continuation, the DRC 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.
14. The DRC judge established that by virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent. Bearing in mind the absence of the
circumstance of repeated offence, the DRC Judge decided to impose a warning on the
Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.
15. In this connection, the DRC judge wished to highlight 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.
Page 5 of 7
REF 20-01579
16. The DRC Judge concluded his deliberations in the present matter by establishing that any further
claim lodged by the Claimant is rejected.
17. Furthermore, taking into account the consideration under number II./3. above, the DRC Judge
referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with his 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 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.
19. Therefore, bearing in mind the above, the DRC Judge decided that, in the event that the
Respondent does not pay the amount 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 club, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.
20. 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.
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER (DRC) JUDGE
1. The claim of the Claimant, Oumare Tounkara, is partially accepted.
2. The Respondent, AFC Astra, has to pay the Claimant the total amount of EUR 1,290 as penalty
fee.
3. A warning is imposed on the Respondent.
4. Any further claims of the Claimant are rejected.
5. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
6. Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not paid 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 and for the maximum duration of three
Page 6 of 7
REF 20-01579
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.
7. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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
Page 7 of 7