DRC Overdue Payables
Texto da decisão
REF FPSD-7138
Decision of the
Dispute Resolution Chamber
passed on 17 November 2022
regarding an employment-related dispute concerning the player Abdoulaye
Sane
COMPOSITION:
Omar Ongaro (Italy), Chairperson
André dos Santos Megale (Brazil),member
Johan van Gaalen (South Africa), member
CLAIMANT:
Abdoulaye Sane, France
Represented by Pedro Macierinha
RESPONDENT:
Al Taawoun, Saudi Arabia
Represented by Ali Abbes and Mohamed Rokbani
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REF FPSD-7138
I. Facts of the case
1.
On 18 August 2020, the French player, Abdoulaye Sane (hereinafter: the Claimant) and the
Saudi Arabian club, Al Taawoun (hereinafter: the Respondent) concluded an employment
contract (hereinafter: the contract), valid from 18 August 2020 until 17 August 2022.
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant a monthly salary of USD 41,666 per month for the first year and USD 40,000 per
month for the second year.
3.
On 3 July 2021, the parties agreed to amicably terminate the contract and concluded a
termination agreement (hereinafter: termination agreement).
4.
In accordance with article 2 of the termination agreement, the Respondent agreed to pay
to the Claimant, the following:
“1-The Club shall pay the player a total amount of USD 150.000 in 30/08/2021
2- In case the player did not sign a new contract with other team within the current transfer
window or the next transfer window, the club shall pay to the player the rest of his monthly
salaries until the effective date of its end on 17/08/2022 payable each month as indicated
in the employment contract
3- In case the player signed a new contract with other team within the transfer window, the
player will just entitled to receive the amount mentioned in article 2-1 (USD 150.000),
representing a full, final and satisfactory settlement of all contractual matters and all his
financial dues toward the club and cannot subsequently claim from the first party any other
amount whatever its nature representing;
4- In case the player signed a contract less salary than his contract with the first party, the first
party should pay the amount differences between the two salaries, provided that the
differences shouldn't be more than 25% of the total month salary (for more clarification the
player month salary with AI Taawoun (40.000USD) if he sign a contract with new club by
monthly salary of 30,000USD first party shall pay (10,000USD) in every month till the end
date of the terminated contract in 17/08/2022.”
5.
On 8 August 2022 the Claimant sent a default notice to the Respondent, requesting
payment of the amount of USD 102,666, granting it a 10 days’ deadline to comply,
however to no avail.
6.
On 3 September 2022, the Claimant concluded an employment contract with the Indian
club Churchill Brothers FC valid from 1 September 2022 until 30 April 2023 entitling him
to a monthly salary of USD 8,000 per month.
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II. Proceedings before FIFA
7.
On 22 August 2022, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
8.
According to the Claimant, the Respondent failed to comply with its contractual financial
obligations as per the termination agreement.
9.
The requests for relief of the Claimant, were that the Respondent pay him the total
overdue amount of USD 106,666 corresponding to USD 40,000 as his salary for June 2022,
USD 40,000 as his salary for July 2022 and USD 22,666 as partial salary for August 2022
(17 days) plus 5% interest p.a. from the due dates until date of effective payment.
b. Position of the Respondent
10. In its reply to the claim, the Respondent mentioned that “the Claimant has already signed
a contract with club Churchill Brothers FC in India league 2 and therefore the Claimant is not
entitled to receive any additional amount from the Respondent due to the fact that he already
signed new contract.”
11. In conclusion the Respondent requested the following relief:
-
“to reject to claim filed by the Claimant.
to request from the Claimant to present his new contract with Churchill Brothers FC in
India and to allow the Respondent to present additional comments on the basis of the new
evidence.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. 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 22 August 2022 and
submitted for decision on 17 November 2022. Taking into account the wording of art. 34
of the October 2022 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.
13. 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 October 2022 edition), the
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Dispute Resolution Chamber 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 Saudi Arabian club.
14. 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 (October 2022 edition), and
considering that the present claim was lodged on 22 August 2022, the July 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
15. 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
16. 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.
i. Main legal discussion and considerations
17. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note that the case at hand pertains to a claim for outstanding
remuneration filed by the Claimant against the Respondent in connection with a
termination agreement, concluded between them on 3 July 2021.
18. In this context, the Chamber acknowledged that its task was to determine whether the
amounts claimed by the Claimant had fallen due and were to be paid by the Respondent.
19. The Chamber noted that the Respondent argued that the Claimant is not entitled to
receive an additional amount from it due to the fact that he already signed an
employment contract with a new club.
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20. In this respect, the Single Judge noted that in accordance with article 2 (2) of the
termination agreement signed between the Claimant and the Respondent, the latter
undertook to pay “to the Claimant these monthly salaries until the effective date of its end on
17/08/2022 payable each month as indicated in the employment contract, in case the Claimant
did not sign a new contract with other team within the current transfer window or the next
transfer window.”
21. In this context the Chamber remarked that although the Claimant concluded an
employment agreement with a new club, the new contract was only valid from
1 September 2022 hence based on the wording of article 2(2) of the termination
agreement the Claimant remained entitled to his monthly salaries.
22. Taking the above into account and the documentation presented by the Claimant, the
Chamber concluded that the Respondent had failed to fulfil the contractually agreed
obligations as per the termination agreement and is thus to be held liable for the
consequences thereof.
ii. Consequences
23. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of the termination agreement committed by the
Respondent.
24. 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
outstanding amount of USD 102,666 as per the termination agreement, corresponding to
the following amounts:
-
USD 40,000 as June 2022 salary
USD 40,000 as July 2022 salary
USD 22,666 as partial August 2022 salary
25. What is more, based on its well-established jurisprudence as well as taking into
account the Claimant’s request, the Chamber decided to award 5% interest p.a. on the
above amounts from the respective due dates until the date of effective payment.
iii. Art. 12bis of the Regulations
26. In continuation, bearing in mind the foregoing considerations, 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. In this respect, the DRC
confirmed that the Respondent failed to comply with its financial obligations in line with
the contract, without a prima facie justification, and was duly notified of the contractual
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breach by the Claimant, who granted the Respondent at least 10 days to cure its default,
to no avail.
27. The DRC established that in virtue of art. 12bis par. 4 of the Regulations it has competence
to impose sanctions on the Respondent.
28. Moreover, the Chamber referred to art. 12bis par. 6 of the Regulations, which establishes
that a repeated offence will be considered as an aggravating circumstance and lead to a
more severe penalty.
29. Bearing in mind the above and taking into account that this is a fourth offense of the
Respondent in the past two years, the deciding body decided to impose a warning and a
fine in the amount of USD 22,500 on the Respondent.
iv. Compliance with monetary decisions
30. 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.
31. 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.
32. 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.
33. 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.
34. 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.
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d. Costs
35. 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.
36. 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.
37. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Abdoulaye Sane, is accepted.
2.
The Respondent, Al Taawoun, has to pay to the Claimant, the amount of USD 102,666 as
outstanding amount plus 5% interest p.a. as from the respective due dates until the date
of effective payment as follows:
- On the amount of USD 40,000 as from 1 July 2022
- On the amount of USD 40,000 as from 1 August 2022
- On the amount of USD 22,666 as from 18 August 2022
▪
3.
A warning and a fine in the amount of USD 22,500 is imposed on the Respondent, which
fine is to be paid to FIFA within 30 days of notification of this decision. (cf. note relating to
the payment of the fine below)
4.
Full payment of the amount mentioned in point 2 (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
of the amount mentioned in point 2 (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 the ban
shall be of 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 article 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
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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).
NOTE RELATING TO THE PAYMENT OF THE FINE
If applicable, payments to FIFA should be made by wire transfer in US dollars (USD) to the
following bank account:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230
IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
Please mention the applicable reference number
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
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