F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 10 March 2021

Decision of the

Dispute Resolution Chamber Judge

passed on 10 March 2021

regarding an employment-related dispute concerning the player Kone Kodjo Brice

BY:

Pavel Pivovarov (Russia), DRC Judge

CLAIMANT:

Kone Kodjo Brice, Côte d'Ivoire

Represented by Slim Boulasnem

RESPONDENT:

Samail SC, Oman

I. FACTS OF THE CASE

1. On 1 September 2019, the Ivorian player, Kone Kodjo Brice (hereinafter: Claimant), and the Omani club, Samail SC (hereinafter: Respondent) signed an employment contract valid as from date of signature until 30 April 2020.

2. In accordance with the employment contract, the Respondent undertook to pay to the Claimant inter alia the following amounts (quoted verbatim):

a. “A Basic Salary of Rial Omani (“OMR”) 600 only

b. Go/return ticket one time only upon contract

c. Offer suitable place for residence

d. Advance money 600 RO”

3. By correspondence dated 9 June 2020, the Claimant put the Respondent in default of payment of OMR 1,200 “plus a flight ticket” granting a 10 days’ deadline in order to remedy the default.

II. PROCEEDINGS BEFORE FIFA

4. On 25 June 2020, the Claimant filed the claim at hand before FIFA.

5. On 1 July 2020, the FIFA Administration informed via the email addresses available for the Respondent on the Transfer Matching System (TMS) of the claim filed against it, granting a deadline until 21 July 2020 to file the Respondent to file an answer to the claim.

6. On 26 January 2021, absent a reply from the Respondent, the FIFA Administration closed the investigation-phase of the matter.

7. On 26 February 2021, the FIFA Administration informed the parties that the matter would be submitted for a decision on 16 March 2021.

8. On the same date, the Respondent sent a letter to FIFA providing its position and stating that the correspondence from FIFA dated 26 January 2021 had been duly received. However, according to the Respondent, the claim filed by the Claimant was never received by the Respondent.

9. A brief summary of the position of the parties is detailed in continuation.

a. The claim of the Claimant

10. According to the Claimant, the Respondent had failed to pay the salaries corresponding to the months of March and April 2020 and the flight ticket which the Claimant was entitled to for his return to Ivory Coast

11. The requests for relief of the Claimant, were the following:

a. OMR 600 as the salary of March 2020 plus 5 % interest p.a. from 31 March 2020;

b. OMR 600 as the salary of April 2020, plus 5 % interest p.a. from 30 April 2020;

c. USD 1,500 as flight ticket from Oman to Ivory Coast

b. Position of the Respondent

12. Despite being invited by FIFA to provide an answer to the claim on the 1 July 2020, the Respondent failed to submit its position within the deadline given.

13. Nevertheless, on 26 February 2021, the Respondent filed its position with FIFA.

III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE

a. Competence and applicable legal framework

14. First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as 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 presented to FIFA on 25 June 2020 and submitted for decision on 10 March 2021. Taking into account the wording of art. 21 of the January 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.

15. Subsequently, the DRC Judge referred to art. 3 par. 1 of the Procedural Rules and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition February 2021), he is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an Ivorian player and an Omani club.

16. Subsequently, the DRC 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 Player (edition February 2021), and considering that the present claim was lodged on 25 June 2020, the June 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

17. The DRC Judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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 DRC Judge stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties.

18. In this respect, the DRC Judge also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c. Merits of the dispute

19. The competence of the DRC Judge and the applicable regulations having been established, the DRC Judge entered into the merits of the dispute. In this respect, the DRC Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC 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.

i. Main legal discussion and considerations

20. The foregoing having been established, the DRC Judge moved to the substance of the matter, and took note of the fact that the player filed the claim at hand requesting outstanding remuneration and benefits.

21. The DRC Judge was observant of the fact that, after having been granted a deadline until 21 July 2020 to file its position, and after the FIFA Administration closed the investigation-phase of the matter on 26 January 2021, the Respondent filed on 26 February 2021 a late submission presenting its position.

22. Bearing in mind the foregoing, the DRC Judge deemed it necessary to assess the admissibility of the correspondence filed by the Respondent on 26 February 2021.

23. By doing so, the DRC Judge confirmed that the correspondence sent by the FIFA Administration on 1 July 2020 was sent to the e-mail addresses indicated by the Respondent in the Transfer Matching System (TMS). Additionally, he recalled the contents of art. 9bis par. 3 of the Procedural Rules, according to which “Communications from FIFA shall be sent to the parties in the proceedings by using the email address provided by the parties or as provided in the Transfer Matching System (TMS; cf. art. 4 par. 1 of Annexe 3 and art. 5 par. 2 of Annexe 3 of the Regulations on the Status and Transfer of Players)”. The email address provided in TMS by associations and clubs is considered a valid and binding means of communication”.

24. Moreover, the DRC Judge referred to the last sentence of the cited article, and confirmed that it is a duty of the Respondent to “ensure that their contact details (e.g. address, telephone number and email address) are valid and kept up to date at all times”.

25. Consequently, the DRC Judge firmly established that the Respondent had been properly summoned to the proceeding at hand for the letter dated 1 July 2020 sent by FIFA was addressed to a valid and binding means of communication, i.e. the e-mail addresses indicated by the Respondent itself on TMS.

26. In continuation, the DRC Judge noted that it stood undisputed that the Respondent had not sent any submissions to FIFA by 21 July 2020.

27. Accordingly, the DRC Judge found that the FIFA Administration acted correctly on the basis of art. 9 par. 3 and 4 of the Procedural Rules by closing the investigation phase of the matter on 26 January 2021. The DRC arrived at such decision considering that the Respondent had failed either to adequately request a deadline extension in accordance with article 16 par. 11 of the Procedural Rules, or to timely file its position. The DRC Judge highlighted that the Respondent filed its letter (i.e. dated 26 February 2021) after the closure of the investigation, that is, at a moment in time where the parties were no longer authorised to supplement or amend their requests or their arguments, to produce new exhibits, or to specify further evidence on which they intended to rely, pursuant to the unequivocal contents of both art. 9 par. 4 of the Procedural Rules and FIFA’s letter dated 26 January 2021.

28. On account of the foregoing, the DRC Judge concluded that the correspondence of the Respondent dated 26 February 2021 was filed late and thus is inadmissible.

ii. Consequences

29. Having stated the above, the DRC Judge turned his attention to the question of the consequences of such unjustified breach of contract committed by the Respondent.

30. With regards to the Respondent’s position, the DRC Judge referred to his considerations under the previous section above, and decided that the Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. In this way, the DRC Judge considered that the Respondent renounced its right to defence and thus accepted the allegations of the Claimant.

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

32. In continuation, the DRC Judge reverted to the player’s claim, according to which at the time of the termination of the contract, his salaries for the months of March and April 2020 and a contractually agreed flight ticket were yet to be paid by the Respondent.

33. The DRC Judge further observed that on 9 June 2020, the player did put the club in default granting a 10 days’ deadline to remedy the default, to no avail.

34. In this regard, the DRC Judge noted that it stands undisputed that the club had failed to pay the player his remuneration for March and April 2020, in the total amount of Omani Rial (“OMR”) 1,200.

35. In this respect, the DRC Judge, based on the principle pacta sunt servanda, decided to award the amount of OMR 1,200 as outstanding remuneration to the player in accordance with the contract.

36. In addition, taking into consideration the player’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC Judge decided to award the player interest at the rate of 5% p.a. on the outstanding amounts as from one day after the respective due dates until the date of effective payment.

37. On the other hand, the DRC Judge noted that the Claimant is requesting the amount of USD 1,500 as compensation for the flight ticket to return to the Ivory Coast. In this regard, the DRC Judge noted that while the relevant contractual clause states that the Respondent undertook to pay “Go/return ticket one time only upon contract” without specifying any amount, no evidence is provided by the Claimant on the actual cost of the flight ticket and the.

38. Based on the above, the DRC Judge noted that the average flight ticket between Oman and Ivory Coast is OMR 207. Hence, the DRC Judge decided to award this amount as compensation.

iii. Compliance with monetary decisions

39. Finally, taking into account the consideration under numbers 35 and 38 above, the DRC 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.

40. In this regard, the DRC 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 and for the maximum duration of three entire and consecutive registration periods.

41. 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, communicates the relevant bank details to the Respondent, provided that the decision is final and binding, 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.

42. The DRC Judge recalled that the above-mentioned bans 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.

43. Lastly, the DRC Judge concluded his deliberations by rejecting any other requests for relief made by any of the parties.

d. Costs

44. The DRC Judge referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, the DRC Judge decided that no procedural costs were to be imposed on the parties.

45. Likewise, and for the sake of completeness, the DRC Judge recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE

1. The claim of the Claimant, Kone Kodjo Brice, is partially accepted.

2. The Respondent, Samail SC, has to pay to the Claimant, the amount of Omani Rial (“OMR”) 1,200 as outstanding remuneration plus 5% interest p.a. as follows:

a. On OMR 600 from 1 April 2020 until the date of effective payment.

b. On OMR 600 from 1 May 2020 until date of effective payment.

3. The Respondent has to pay to the Claimant the amount of OMR 207 as compensation.

4. Any further claims of the Claimant are rejected.

5. A warning is imposed on the Respondent.

6. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the email addresses as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts mentioned under points 2 & 3 above.

7. The Respondent shall provide evidence of payment of the due amounts in accordance with points 2 & 3 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).

8. In the event that the amounts due plus interest in accordance with points 2 & 3 above are 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 amounts are 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).

9. The ban mentioned in point 8 above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

10. In the event that the aforementioned sums plus interest are 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 DRC 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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