FIFA - Decisión disputa Konate 02082023

REF. FPSD-10642

Decision of the Dispute Resolution Chamber passed on 2 August 2023 regarding an employment-related dispute concerning the player Mohamed Oumar Konate BY: Clifford J. HENDEL (USA & France), Deputy Chairperson Stefano SARTORI (Italy), member Andre DOS SANTOS MEGALE (Brazil), member

CLAIMANT:

Mohamed Oumar Konate, Mali Represented by Berlin Sports Law

RESPONDENT:

Etoile Sportive Du Sahel, Tunisia pg. 2

REF. FPSD-10642

I. Facts of the case

1. The parties to the proceeding are the Malian player Mohamed Oumar Konaté (hereinafter: Claimant or player) and Etoile Sportive Du Sahel (hereinafter: club or Respondent)

2. Following a previous dispute between the parties and a decision by the DRC under ref. FPSD-3043, the parties concluded a settlement agreement on 24 January 2023 (hereinafter: settlement agreement).

3. According to the settlement agreement, the Respondent undertook to pay the Claimant the total sum (hereinafter: the Settlement Sum) of EUR 764,917.14, as follows: “(i) The Settlement Sum shall be paid in two (2) installments according to the following amounts and payment plan: a) the first installment of EUR 458,950.28 shall be paid upon signature of the present Settlement Agreement, to the Player’s Bank Account in Tunisia, according to the banking details attached to this agreement; b) the second installment of EUR 305,966.86 shall be paid on or before 31 May 2023, to the following account: “(i) The Settlement Sum shall be paid in two (2) installments according to the following amounts and

payment plan: Account Holder: Mohamed Oumar Konate Bank: Banque Internationale pour le Mali

BIC/SWIFT CODE: BIPMMLBA

Bank account: 25326797701-42 and the Club shall provide bank confirmation of the executed transfer to the Player’s account via email to the address info@berlinsportslaw.com”

4. Clause 2 of the settlement agreement reads as follows: “In the event of delay or incomplete payment of the second installment within the stated deadline, the Player shall serve the Club with a final notice of default, granting it 2 (two) additional days to make the due payment. If the Club fails to remedy the default within the additional deadline granted, the present Settlement Agreement shall be deemed breached by the Club and the Player will be entitled to claim before the competent FIFA dispute resolution body the full outstanding amount of the Settlement Sum.

In addition, the Player shall be entitled to claim a contractual penalty of 20% on the total Settlement Sum, and a 8% interest p.a. on the contractual penalty amount as of the day the present Settlement Agreement is breached by the Club.”

5. The first payment of EUR 458,950.28 was timely paid by the Respondent and is not in dispute.

6. On 2 June 2023, the Claimant put the Respondent in default and requested payment of the second instalment under the settlement agreement of EUR 305,966.86 setting a 2 days’ time limit in order to remedy the default. pg. 3

REF. FPSD-10642

7. On 5 June 2023, the Claimant again put the Respondent in default and requested payment of the second instalment under the settlement agreement of EUR 305,966.86 plus the 20% penalty agreed therein, thus for a total of EUR 458,950.29, setting a 10 days’ time limit to remedy the default.

8. On 21 June 2023, the Claimant lodged a claim against the Respondent in front of FIFA and requested

the following relief:

58. In view of the aforementioned, the Claimant, thus, requests that the Dispute Resolution Chamber

of the FIFA Football Tribunal accepts the present claim and orders the Respondent to: a) Pay to the Claimant the amount EUR 305,966.86 (three hundred and five thousand nine hundred and sixty-six Euros and eighty-six cents), corresponding to the outstanding second installment due pursuant to the Settlement Agreement signed between the Parties on 24 January 2023;

1. Pay to the Claimant interest at the rate of 5% p.a. on the amount of EUR 305,966.86 as of 01

June 2023 until the date of effective payment; b) Pay to the Claimant the amount of EUR 152,983.43 (one hundred and fiftytwo thousand nine hundred and eighty-three Euros and forty-three cents), corresponding to the penalty fee established in the Settlement Agreement;

1. Pay to the Claimant interest at the rate of 8% p.a. on the amount of EUR 152,983.43 as of 05

June 2023 until the date of effective payment.

59. Moreover, the Claimant requests that the Dispute Resolution Chamber of the FIFA Football Tribunal imposes the sanctions provided for by Art. 12bis of the FIFA RSTP upon the Respondent.

9. In his claim, the player argued that the club failed to respect the settlement agreement, and therefore asks for it to be enforced, together with the relevant interests and penalty per the principle pacta sund sevanda.

10. In its reply, the Respondent limited itself to “challenge the contractual penalty”, without any further arguments or evidence. pg. 4

REF. FPSD-10642

II. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

11. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was presented to FIFA on 21 June 2023 and submitted for decision on 2 August

2023. 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. Subsequently, the members of the Chamber 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 lit. b) of the Regulations on the Status and Transfer of Players (May 2023 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 player from Mali and a club from Tunisia.

13. Subsequently, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (May 2023 edition), and considering that the present claim was lodged on 21 June 2023, the same edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

14. The Chamber 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 Chamber stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it 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. Its competence and the applicable regulations having been established, the Chamber entered into the merits of the dispute. In this respect, the Chamber started by acknowledging all the abovementioned facts as well as the arguments and the documentation on file. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments, and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

1. Main legal discussion and considerations

16. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that this is a claim of the player against the club for overdue payables. pg. 5

REF. FPSD-10642

17. According to the player, the club failed to remit the 2nd instalment of the settlement agreement, which prompted the player to place the Respondent twice in default to no avail, therefore triggering clause 2 of the settlement agreement and the penalty established therein.

18. The Respondent does not challenge the principal amount due, only the contractual penalty, without further elaboration, however.

19. As such, the task of the DRC was limited to assessing whether the penalty/interest agreed under the settlement agreement should be enforeced.

20. Since the contractual penalty is proportionate in line with the jurisprudence of the DRC and was freely agreed by the parties, and in accordance with the general legal principle of pacta sunt servanda, the DRC decided to partially award the player the amounts requested. The Chamber remarked however that no interest shall be awarded on the penalty, given the principle ne bis in idem)

21. By the same token and because this interest of 8% was agreed on the penalty only, the Chamber found that the standard rate of 5% in line with the jurisprudence of the Football Tribunal shall apply

as requested by the Claimant:

22. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which were outstanding under the settlement agreement and its corresponding penalty and interests, as

follows: a. EUR 305,966.86 plus 5% interest p.a. as from 1 June 2023 until the date of effective

payment b. EUR 152,983.42 as contractual penalty. ii. Art. 12bis of the Regulations

23. In continuation, the Chamber 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.

24. To this end, the Chamber 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 Chamber 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 Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it is competent to impose sanctions on the club. On account of the above and bearing in mind that this is the 3rd pg. 6

REF. FPSD-10642 offense by the club within the last two years, the Chamber decided to impose a fine of USD 20,000 on the club in accordance with art. 12bis par. 4 lit. c) of the Regulations.

27. In this connection, the Chamber 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 Chamber 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 DRC 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 DRC 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.

32. The DRC 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 Chamber 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 Chamber decided that no procedural costs were to be imposed on the parties.

34. Likewise, and for the sake of completeness, the Chamber 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 DRC concluded its deliberations by rejecting any other requests for relief made by any of

the parties. pg. 7

REF. FPSD-10642

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Mohamed Oumar Konate, is partially accepted.

2. The Respondent, Etoile Sportive Du Sahel, must pay to the Claimant the following amount(s):

a. EUR 305,966.86 as outstanding remuneration plus 5% interest p.a. as from 1 June 2023 until the date of effective payment; b. EUR 152,983.42 as contractual penalty.

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. 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.

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. A fine in the amount of USD 20,000 is imposed on the Respondent, which must be paid to FIFA within 30 days of notification of this decision. Such fine must be paid to the following bank account with a clear reference to the case FPSD-10642:

UBS Zurich Account number 230-366677.61N (FIFA Players’ Status)

Clearing number 230

IBAN: CH12 0023 0230 3666 7761 N

SWIFT: UBSWCHZH80A

8. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 8

REF. FPSD-10642

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 FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 9