F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 12 June 2020

Decision of the

DRC Judge

passed via videoconference, on 12 June 2020,

regarding an employment-related dispute concerning the player Mohamed Oumar Konaté

BY:

Daan de Jong (Netherlands), DRC Judge

CLAIMANT:

Mohamed Oumar Konaté, Mali

Represented by Mr Jan Schweele

RESPONDENT:

RS Berkane, Morocco

I. FACTS OF THE CASE

1. On 9 July 2015, the Malian player, Mr Mohamed Oumar Konaté (hereinafter: the player or Claimant) and the Moroccan club, RS Berkane (hereinafter: the club or Respondent) signed an employment contract (hereinafter: the contract) valid as from 1 July 2015 until 30 June 2018.

2. According to art. 9 of the contract, the Claimant was entitled to receive 10% of the net amount of any potential transfer from the Respondent to a third club.

3. In July 2017, the Claimant was transferred from the Respondent to the Tunisian club, Etoile du Sahel. The Respondent and Etoile du Sahel agreed upon a transfer fee in the amount of EUR 500,000.

4. On 28 January 2020, the Claimant put the Respondent in default, granting 10 days to pay the amount of EUR 50,000, corresponding to 10% of EUR 500,000, for the transfer of the Claimant from the Respondent to the club, Etoile du Sahel.

5. On 10 February 2020, the Claimant lodged a claim against the Respondent in front of FIFA.

6. In his claim, the Claimant first held that the Respondent had paid the transfer fee in the amount of EUR 500,000 to the club, Etoile du Sahel, in two instalments as follows:

- EUR 200,000 in August 2017;

- EUR 300,000 in August 2019.

7. Furthermore, the Claimant argued that the present matter met the criteria of art. 12bis of the Regulations on the Status and Transfer of Players, insofar as the amount in dispute had been due for more than 30 days and a 10-day deadline had been granted to the Respondent to make said payment.

8. In light of the above, the Claimant requested the payment of EUR 50,000, plus 5% interest p.a. as from August 2018 (the due date according to the Claimant).

9. The Claimant also requested the imposition of a fine and a ban from registering any new players for one or two registration periods on the Respondent.

10. In spite of being invited to do so, the Respondent did not reply to the claim.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE

1. First of all, the Dispute Resolution Chamber judge (hereinafter also referred to as the judge or DRC judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 10 February 2020. Consequently, the November 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the 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 (June 2020 edition), the Dispute Resolution Chamber judge 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 Moroccan club.

3. Furthermore, the 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 par. 2 of the Regulations on the Status and Transfer of Players (June 2020 edition), and considering that the present claim was lodged on 10 February 2020, the January 2020 edition of said regulations (hereinafter: 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 judge entered into the substance of the matter. In this respect, the judge started by acknowledging all the above-mentioned facts as well as the arguments and documentation on file. However, the judge emphasised that in the following considerations, he will refer only to the facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand. In particular, the judge recalled that, in accordance with art. 6 par. 3 of Annex 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the FIFA Transfer Matching System (hereinafter: TMS).

5. In this respect, the judge acknowledged that the Claimant and the Respondent had signed an employment contract on 9 July 2015, valid as from 1 July 2015 until 30 June 2018. Moreover, the judge took note of art. 9 of the contract, according to which the Claimant was entitled to receive 10% of the net amount of any potential transfer from the Respondent to a third club. In this respect, the judge observed that the Claimant was transferred from the Respondent to the Tunisian club, Etoile du Sahel, in July 2017 for a transfer fee of EUR 500,000.

6. In continuation, the judge noted the Claimant’s allegations that the Respondent had paid the transfer fee of EUR 500,000 in two instalments, EUR 200,000 in August 2017 and EUR 300,000 in August 2019.

7. Subsequently, the judge noted that the Respondent failed to provide its reply to the claim, in spite of having been invited to do so. By not presenting its position to the claim, the DRC judge was of the opinion that the Respondent renounced its right of defence and thus, in principle, accepted the allegations of the Claimant.

8. Furthermore, as a consequence of the aforementioned consideration, the DRC judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a decision upon the basis of the documentation already on file; in other words, upon the statements and documents presented by the Claimant.

9. In this context, the judge pointed out that it remained uncontested that the Claimant was in fact entitled to receive 10% of any transfer fee from the Respondent to a third club. In continuation, the judge observed that it also remained uncontested that the Claimant had in fact been transferred from the Respondent to the club, Etoile du Sahel, in July 2017 against the payment of EUR 500,000.

10. On account of the aforementioned considerations, the judge established that the amount which the Claimant was entitled to receive pursuant to the contract, corresponding to a percentage of the transfer fee, was in fact equivalent to a bonus.

11. Notwithstanding the above, the judge referred to the information available on the TMS, according to which the payment of the transfer fee was to be made by Etoile du Sahel to the Respondent, in four instalments as follows:

 EUR 200,000 by 31 July 2017;

 EUR 100,000 by 30 November 2017;

 EUR 100,000 by 28 February 2018;

 EUR 100,000 by 31 May 2018.

12. In this respect, the judge pointed out that the contract did not stipulate any due dates for the payments to be made to the Claimant. In these circumstances, the judge deemed that the amounts due to the Claimant, i.e. 10% of the aforementioned instalments, should be paid by the Respondent on the last day of the month following the payment of each instalment by Etoile du Sahel to the Respondent. Therefore, taking into account the right of the Claimant to receive 10% of any transfer fee, the judge concluded that the Respondent should have made the following payments to the Claimant:

 EUR 20,000 by 31 August 2017;

 EUR 10,000 by 31 December 2017;

 EUR 10,000 by 31 March 2018;

 EUR 10,000 by 30 June 2018.

13. In this context, the DRC judge referred to art. 25 par. 5 of the Regulations, according to which the Dispute Resolution Chamber shall not hear any case subject to the Regulations if more than two years have elapsed since the event giving rise to the dispute. Considering that the claim of the Claimant was lodged on 10 February 2020 only, the DRC judge found that he could not enter into any claim for amounts that fell due prior to 10 February 2018.

14. Taking into account the previous considerations, the DRC judge preliminarily concluded that the Claimant’s request for amounts due before the date of 10 February 2018, i.e. EUR 20,000 to be paid by 31 August 2017 and EUR 10,000 by 31 December 2017, was barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations.

15. Notwithstanding the above and with regard to the third and fourth instalments, the judge established that the Respondent failed to remit to the Claimant the amounts of EUR 10,000 and EUR 10,000, due on 31 March 2018 and 30 June 2018 respectively.

16. Consequently, the DRC judge decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant the total amount of EUR 20,000.

17. In addition, taking into consideration the Claimant’s request and the constant practice of the Dispute Resolution Chamber (DRC) judge in this regard, the judge decided to award the Claimant interest on the above-mentioned amounts, as follows:

 5% interest p.a. as from 1 April 2018 until the date of effective payment on the amount of EUR 10,000;

 5% interest p.a. as from 1 July 2018 until the date of effective payment on the amount of EUR 10,000.

18. Having established that the Respondent is to be held liable to pay the aforementioned amounts to the Claimant, the DRC judge was eager to emphasise that art. 12bis of the Regulations may not apply to the present matter, considering that the amounts at the basis of the dispute are conditional payments.

19. Furthermore, the judge referred to par. 1 and 2 of art. 24bis 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.

20. 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.

21. Therefore, bearing in mind the above, the DRC judge decided that, in the event that the Respondent does not pay the amounts 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 Respondent, 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 Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

22. 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.

23. The DRC judge concluded his deliberations in the present matter by establishing that any further request filed by the Claimant is rejected.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE

1. The claim of the Claimant, Mohamed Oumar Konaté, is partially accepted, insofar as it is admissible.

2. The Respondent, RS Berkane, has to pay to the Claimant the amount of EUR 20,000 plus interest at the rate of 5% p.a. as follows:

- on the amount of EUR 10,000 as from 1 April 2018 until the date of effective payment;

- on the amount of EUR 10,000 as from 1 July 2018 until the date of effective payment.

3. Any further claim lodged by the Claimant is rejected.

4. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amount mentioned under point 2. above.

5. The Respondent shall provide evidence of payment of the due amount in accordance with point 2. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount due plus interest in accordance with point 2. above is not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, 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 entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

7. The ban mentioned in point 6. above will be lifted immediately and prior to its complete serving, once the due amount is paid.

8. In the event that the aforementioned sum plus interest 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 FIFA’s Disciplinary Committee for consideration and a formal decision.

For the Dispute Resolution Chamber judge:

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:

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