FIFA - Decisión disputa Mandala 29092023

REF. FPSD-10204

Decision of the Dispute Resolution Chamber passed on 29 September 2023 regarding an employment-related dispute concerning the player Konte Mandala BY: Lívia Silva Kägi (Brazil & Switzerland), Deputy Chairperson Calum Beattie (Scotland), member Stijn Boeykens (Belgium), member

CLAIMANT:

Konte Mandala, Mali Represented by Mr Slim Boulasnem

RESPONDENT:

El Soqour, Libya Represented by Sport Makers pg. 2

REF. FPSD-10204

I. Facts of the case

1. On 4 September 2022, the Malian player Konte Mandala (hereinafter: Claimant or player) and the Libyan club El Soqour (hereinafter: club or Respondent) concluded an employment contract (hereinafter: contract) valid as from the date of signature until 30 July 2023.

2. According to the contract, the Respondent undertook to pay the Claimant a monthly salary of USD 1,500 and an advance payment of USD 15,000, due upon the commencement of the Contract.

3. On 8 August 2022, the Respondent procured a visa for the Claimant.

4. On 9 August 2022 and 10 August 2022, the Respondent paid the Claimant USD 6,000.

5. On 9 October 2022, the Respondent allegedly paid the advance of costs of USD 15,000.

6. On 5 December 2022, the Claimant departed Libya for the winter break.

7. On 20 December 2022, the Respondent and the Claimant exchanged messages. The Respondent stated that it would send the Claimant a flight ticket, whereas the Claimant stated that his visa had expired and that he required a new one to enter the country.

8. On 25 December 2022, the Claimant allegedly requested payment of his remaining

salaries for the duration of the Contract in advance.

9. On 31 December 2022, the Respondent allegedly sent the Claimant a flight ticket to return to Libya to resume his activity under the Contract.

10. On 2 January 2023, a representative of the Respondent sent the Claimant an empty “mutual termination agreement” via WhatsApp, which the latter was supposed to complete and return signed. The Claimant was also informed that he is no longer in the coach’s plans for the remainder of the season.

11. Between 6 January 2023 and 10 January 2023, the parties exchanged various messages, in which the Claimant threatened to submit a claim to FIFA if he did not receive is unpaid salaries. No agreement was reached between the parties with regards to paying the allegedly outstanding amounts.

12. On 24 February 2023, the Claimant put the Respondent in default and requested payment of USD 18,750, corresponding to the remainder of the advance payment

(USD 11,000) as well as the salaries between September 2022 and January 2023 (5 x USD 1,500 each). A deadline of 10 days was granted to remedy the alleged breach. pg. 3

REF. FPSD-10204

13. On 25 February 2023, the Respondent replied to the Claimant, informing the latter that it has allegedly paid the full advance of USD 15,000, that no further administrative action was necessary with regards to paying the Claimant any amounts, and that apart from this, both parties still had to come to a mutual agreement with regards to the contractual situation – either with the Claimant continuing to play or a mutual termination agreement being signed (“nous n’avons aucune objection à resoudre ce différend à l’amiable, que ce soi ten rejoignant l’équipe ou s’il souhaite ne pas continuer, puis un accord est trouvé sur la manière de résilier le contrat avec lui par consentement mutuel.”)

14. On 27 February 2023, the Claimant informed the Respondent that he had not received the payment of USD 15,000 as alleged, and that he was also still not given any of his salaries from September onwards. The Claimant equally stressed that he was not provided with a visa, and that without one he would not be able to return to the Respondent to resume his activity.

15. On the same day, the Respondent replied, arguing as in the previous letter, and without adducing any documentation as requested by the Claimant.

16. On 30 March 2023, the Claimant unilaterally terminated the Contract.

17. On 27 July 2023, the Claimant was registered with Congolese club AS Otoho (hereinafter: the New Club) as an amateur, without any remuneration against his services. pg. 4

REF. FPSD-10204

II. Proceedings before FIFA

18. On 11 May 2023, the Claimant lodged a claim against the Respondent in front of FIFA. A summary of the parties’ submissions is outlined below.

a. Position of the Claimant

19. In his claim, the player argued that the Respondent failed to remit amounts corresponding to 7 monthly salaries (between September 2022 and March 2023), despite having been put in default various times and granted deadlines to remedy the alleged breaches. Moreover, the Claimant argued that the Respondent had been in breach of the contract by refusing to provide a visa for his return after the winter leave, and sending an empty “mutual termination agreement” to drive him out purposely.

20. According to the Claimant, thus, he had just cause to terminate the Contract.

21. The Claimant thus requested payment of USD 21,500 as outstanding remuneration and USD 6,000 as compensation, as well interest from the respective due dates.

b. Position of the Respondent

N OF THE RESPONDENT

22. In its reply, the Respondent firstly wished to point out that the parties had already been

in a contractual relationship with each other the previous season and that the Contract signed on 4 September 2022 was a renewal of the previous contract.

23. Having stated the above, the Respondent alleged that the Claimant requested to be paid some salaries in advance as he needed additional funds to travel to Libya. On 9 August 2022 and 10 August 2022, the Respondent made payments to the Claimant in the amount of USD 6,000 in total.

24. The Respondent also alleged that it paid the advance of costs in full and that the Claimant allegedly signed a receipt for said amount.

25. Therefore, by having paid both the advance of costs in full, and three monthly salaries ahead of schedule at the Claimant’s request, no outstanding amounts were due at the time the Claimant was leaving for the winter break.

26. Subsequently, when the Claimant was away over winter, the Respondent allegedly provided him with flight tickets to return, which the former did not use. As a result of his absence, the Respondent ceased paying the Claimant remuneration as the latter was in breach of his obligations.

27. In short, the Respondent argued that the Claimant lacked just cause to terminate the Contract, and requested for the claim to be rejected. No counterclaim was lodged. pg. 5

REF. FPSD-10204

c. Replica of the Claimant

28. In his replica, the Claimant stressed the following points: - The alleged payment of USD 6,000 at the beginning of the Contract was in reality only USD 4,000, as one of the proofs of payment submitted by the Respondent was a duplicate; in any event, the Claimant emphasised that none of the payment slips provided by the Respondent prove that the payments are related to salaries, as opposed to the advance payment stipulated contractually, and that it was the Respondent’s burden to prove that they relate to such concept.

• The Claimant equally wished to emphasise that the signature on the payment receipt of the amount of USD 15,000 is forged, and that the original document be requested by the Respondent to verify the authenticity. - The Claimant also pointed out that the Respondent failed to contest the fact that an empty termination agreement was sent to the Claimant to let him understand that he was no longer wanted. Equally it was mentioned that the Claimant had not been provided with a visa to return after the winter break.

29. In short, the Claimant reiterated his request for relief.

UPLICA OF THE RESPONDENT

d. Duplica of the Respondent

30. In its duplica, the Respondent submitted new proofs of payment to corroborate that USD 6,000 had been paid at the beginning of the Contract.

31. Furthermore, the Respondent provided reports (both digitally and as originals) from the Ministry of Justice of Libya confirming that all proofs of payment and signed receipts of the Claimant were authentic.

32. The Respondent, thus, once again emphasised that no amounts were outstanding when the Claimant left for his winter break.

33. Furthermore, the Respondent alleged that the Claimant’s visa was valid for the entire season, and provided a statement by the “Airport Passport Control Department” of Libya confirming this.

34. Thus, the Respondent reiterated that it had a valid reason not to continue paying the Claimant, as he unilaterally and without authorisation extended his private holiday. pg. 6

REF. FPSD-10204

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

35. 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 11 May 2023 and submitted for decision on 29 September 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.

36. 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 employmentrelated dispute with an international dimension between a Malian player and a Libyan club.

37. 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 11 May 2023, the March 2023 edition edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

38. 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

39. 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 above-mentioned 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. pg. 7

REF. FPSD-10204

1. Main legal discussion and considerations

40. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that the parties strongly dispute the payment of certain amounts under the Contract by the Respondent, as well as the lawfulness of the contractual termination.

41. In this context, the Chamber acknowledged that it its task was to determine whether, based on the arguments and documentation on file, the Respondent had had remitted the amounts described as outstanding by the Claimant, whether the Contract had been terminated with just cause, and what the consequences of such termination may be.

42. To begin with, the Chamber revisited the positions of the parties. According to the Claimant, he terminated the Contract with just cause due to outstanding remuneration as well as the abusive behaviour of the Respondent. In particular, the Chamber noted that the Claimant pointed to the failure of the latter to provide him with a visa, and that he was sent an empty “mutual termination agreement” with the accompanying statement that he was no longer in the coach’s plans. The Chamber also noted the Claimant’s insistence on not having received the amounts that remained unpaid prior to his departure for the winter break.

43. On the other hand, the Chamber observed that the Respondent argued that it had complied with the financial terms of the Contract up to the Claimant’s departure over the winter break, and that because of his own, wilful refusal to return, it was entitled to cease paying he Claimant’s salaries thereafter.

44. The Chamber, prior to entering an evaluation of the above submissions, recalled the contents of art. 13 par. 5 of the Procedural Rules, in accordance with which a party that asserts a certain fact also carries the burden of corroborating its veracity.

45. Having said that, the Chamber firstly considered the allegation of the unpaid salaries / advance payment under the Contract.

46. In this respect, it was noted that the Respondent adduced convincing evidence demonstrating that the amount of USD 6,000 had been received by the Claimant.

47. As to the payment slip of USD 15,000, the Chamber wished to point out that, not only had it been convinced of the authenticity thereof after taking note of the accompanying statement of authenticity produced by a public authority of Libya, but also after receiving the original document via post from the Respondent, considered that the document appeared authentic – i.e., was signed in live ink, and with a significant overlap as to the signature of the Claimant. The Chamber hereby wished to emphasise that it undertook a layman’s analysis, and that it was not a criminal judicial authority. pg. 8

REF. FPSD-10204

48. Overall, the Chamber deemed that the burden of proving that the payments of USD 6,000 and USD 15,000 respectively had been met by the Respondent. As a result, the Chamber held that the Respondent had not been in default of any amounts towards the Claimant at the time of his departure for the winter break.

49. Having established the above, the Chamber turned to the question of the lawfulness of the contractual termination.

50. In respect of said matter, the Chamber deemed it significant that the Claimant’s allegation of having been handed an empty “mutual termination agreement” by the Respondent had gone uncontested. Equally, the Respondent had not challenged the assertion that the head coach had communicated to the Claimant that he was no longer part of the club’s plans.

51. The Chamber also wished to point to the fact that, whilst the Respondent argued that the Claimant’s visa had been renewed, based on a declaration from the “Airport Passport Control Department”, a copy of the Claimant’s expired visa had been adduced to the file by

the latter. The Chamber considered that, in light of such evidence existing, the Respondent should have submitted a copy of the purportedly renewed visa to meet its burden of proving that it had complied with its obligations under the Contract.

52. Taking all of the above into consideration, the Chamber deemed that the Respondent had repeatedly and in a significant manner been in breach of its contractual obligations towards the Claimant. Indeed, and not least on account of the empty “mutual termination agreement”, the Respondent appeared to want to “drive out” the Claimant from his

Contract.

53. Therefore, the Chamber deemed that the Respondent had no justification to cease paying the Claimant his salaries as from the end of December 2022.

54. With this in mind, the Chamber referred to its longstanding jurisprudence, according to which only a contractual breach of a substantial enough severity or frequency may give rise to just cause to terminate the Contract prematurely. Indeed, an early termination of the Contract may only act as an ultima ratio measure.

55. In the case at hand, the Chamber considered that, with three salaries having remained unpaid at the time of the Contract being terminated, in addition to the breachful acts of the Respondent outlined above, the Claimant had a just cause to terminate the Contract.

56. Consequently, the Respondent was deemed by the Chamber to be liable to compensate the Claimant for such unlawful breach. pg. 9

REF. FPSD-10204 ii. Consequences

57. Having stated the above, the members of the Chamber turned their attention to the question of the consequences of such unjustified breach of contract committed by the

Respondent.

58. The Chamber observed that the outstanding remuneration at the time of termination, coupled with the specific requests for relief of the player, are equivalent to three salaries under the contract, amounting to USD 4,500.

59. 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 contract at the moment of the termination, i.e. USD 4,500 (i.e. three times USD 1,500, between January 2023 and March 2023).

60. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amounts as from the following dates: - On the amount of USD 1,500, 5% p.a. as from 1 February 2023 until the date of effective payment; - On the amount of USD 1,500, 5% p.a. as from 1 March 2023 until the date of effective payment; - On the amount of USD 1,500, 5% p.a. as from 31 March 2023 until the date of effective payment.

61. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the player by the club in the case at stake. In doing so, the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

62. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber

established that no such compensation clause was included in the employment contract at the basis of the matter at stake. pg. 10

REF. FPSD-10204

63. As a consequence, the members of the Chamber determined that the amount of compensation payable by the club to the player had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

64. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the contract from the date of its unilateral termination until its end date. Consequently, the Chamber concluded that the amount of USD 6,000 (i.e. the residual value of the Contract) serves as the basis for the determination of the amount of compensation for breach of contract.

65. In continuation, the Chamber verified as to whether the player had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

66. In the case at hand, the Claimant indicated that he had not signed a new employment contract since the contractual termination. Furthermore, pursuant to the information available on TMS, the Claimant had merely been registered as an amateur with the New Club, with no remuneration for his footballing activity being fixed therein.

67. Consequently, the Claimant was held not to have mitigated his damages.

68. In conclusion, therefore, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the club must pay the amount

of USD 6,000 to the player, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

69. Lastly, taking into consideration the player’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the player interest on said compensation at the rate of 5% p.a. as of 31 March 2023 until the date of effective payment. iii. Compliance with monetary decisions

70. 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. pg. 11

REF. FPSD-10204

71. 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.

72. 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.

73. 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.

74. 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

75. 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.

76. 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.

77. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 12

REF. FPSD-10204

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Konte Mandala, is partially accepted.

2. The Respondent, El Soqour, must pay to the Claimant the following amount(s): - USD 4,500 as outstanding remuneration plus interest p.a. as follows: - 5% interest p.a. over the amount of USD 1,500 as from 1 February 2023 until the date of effective payment; - 5% interest p.a. over the amount of USD 1,500 as from 1 March 2023 until the date of effective payment; - 5% interest p.a. over the amount of USD 1,500 as from 31 March 2023 until the date of effective payment. - USD 6,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 31 March 2023 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. 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. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 13

REF. FPSD-10204

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. 14