DRC Overdue Payables
Texto da decisão
REF FPSD-8971
Decision of the
Dispute Resolution Chamber
passed on 2 March 2023
regarding an employment-related dispute concerning
the player Benjamin Acheampong
BY:
Frans de Weger (the Netherlands), Chairperson
Peter Lukasek (Slovakia), member
Laurel Vaurasi (Fiji), member
CLAIMANT:
Benjamin Acheampong, Ghana
Represented by Mr Yussif Chibsah
RESPONDENT:
El Zamalek, Egypt
Represented by Mr Salvatore Civale
Page 2
REF FPSD-8971
I. Facts of the case
1. On 1 September 2021, the Ghanaian player Benjamin Acheampong (hereinafter: Claimant or
player) and the Egyptian club El Zamalek (hereinafter: club or Respondent) concluded
Settlement Agreement (hereinafter: the Contract) by way of which a payment plan for
amounts awarded in a previous decision of the FIFA Dispute Resolution Chamber (DRC) was
established.
2. According to art. 2 of the Settlement Agreement, the Respondent undertook to pay the
Claimant a total amount of “USD 900,000” as follows:
-
USD 300,000 before 15 September 2021;
USD 150,000 before 1 November 2021;
USD 90,000 before 1 February 2022;
USD 90,000 before 1 May 2022;
USD 90,000 before 1 August 2022;
USD 90,000 before 1 November 2022;
USD 90,000 before 1 February 2022.
3. Furthermore, according to art. 4 of the Settlement Agreement, the Respondent and the
Claimant agreed that, if any amounts are delayed by 10 business days, the entire residual
amount as well as a penalty fee of USD 90,000 would become due.
4. Lastly, in accordance with art. 5 of the Settlement Agreement, the parties undertook that in
cases of “force majeure”, they would negotiate for up to 30 days before the application of
any contractual penalty or recourse to FIFA.
5. On 8 December 2022, the Claimant put the Respondent in default and requested payment
of USD 90,000, setting a 10 business days’ time limit in order to remedy the default.
6. On 15 December 2022, the Respondent requested a rescheduling of the amounts under the
Contract due to the devaluation of the local currency (EGP).
7. On 16 December 2022, the Claimant rejected the request for rescheduling of the debt made
by the Respondent.
II. Proceedings before FIFA
1. On 19 January 2023, the Claimant lodged a claim against the Respondent in front of FIFA and
requested payment of USD 180,000 as outstanding remuneration, as well as USD 90,000
contractual penalty.
Page 3
REF FPSD-8971
2. In his claim, the Claimant argued that the Respondent failed to comply with the terms under
the Settlement Agreement by defaulting on the payment of USD 90,000, thereby triggering
the acceleration and penalty clause contained in art. 4 of the Settlement Agreement.
3. Moreover, the Claimant stated that there is clearly no case of force majeure, thereby
justifying the rejection of the counteroffer to reschedule the payments.
4. The Claimant therefore requested USD 180,000 plus interest of 5% p.a. as from
23 December 2022 until the date of effective payment, and contractual penalty of
USD 90,000, plus interest from the same date.
5. In its reply, the Respondent acknowledged the outstanding amounts and asserted that it was
unable to make the payments due to a case of force majeure – in particular the devaluation
of the local currency – and denounced the Claimant’s reluctance to renegotiate the dates of
payment, claiming that the latter was thereby in violation of art. 5 of the Settlement
Agreement and in clear bad faith.
6. The Respondent submitted the current conversion rate of EGP – USD as evidence of the
alleged situation of force majeure.
Page 4
REF FPSD-8971
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 19 January 2023 and
submitted for decision on 2 March 2023. 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.
2.
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
Dispute Resolution Chamber is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
Ghanaian player and an Egyptian club.
3.
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 19 January 2023, the
October 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
b. Burden of proof
4.
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
5.
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.
Page 5
REF FPSD-8971
i. Main legal discussion and considerations
6.
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 lawfulness of the
breach of certain financial obligations under the Settlement. In this respect, the Chamber
observed that the non-payment of the amounts in dispute was acknowledged by the
Respondent.
7.
In this context, the Chamber acknowledged that it its task was to determine whether,
based on the evidence on file, the Respondent had a valid justification for not complying
with the financial terms of the Settlement Agreement.
8.
In this respect, the Chamber recalled the line of argument submitted by the Claimant that
the Respondent had failed to the amount of USD 90,000 by 1 November 2022, as
stipulated per the Settlement Agreement, thus triggering the acceleration clause under
art. 4 thereunder, and additionally giving rise to a contractual penalty of USD 90,000,
creating an alleged total debt of USD 270,000.
9.
On the other hand, the Chamber took note of the submission of the Respondent,
according to which the latter had suffered from the consequences of a force majeure
situation, and that the Claimant had shown a lack of flexibility and bad faith by not
agreeing to reschedule the due payments on account of said force majeure situation.
10. Whilst evaluating the parties’ respective submissions, the Chamber referred to the
wording of art. 13 par. 5 of the Procedural Rules, according to which a party that asserts
a fact bears the burden of proving its veracity.
11. In light of this, the Chamber deemed that the evidence submitted by the Respondent, i.e.
solely the current exchange rate of the local currency against USD, was insufficient to
meet the burden of proving that the Respondent indeed found itself in a situation of force
majeure, to the extent that it was unable to make the due payments under the Settlement
Agreement, and thus displace the principle of pacta sunt servanda.
12. Therefore, the Chamber established that the Respondent had no valid justification to
default on the contractually agreed payments.
13. Subsequently, the Chamber proceeded to consider the validity of the penalty clause,
which stated that, in addition to making the entire remaining amount under the
Settlement Agreement due, obliged the Respondent to pay an additional amount of
USD 90,000.
Page 6
REF FPSD-8971
14. In this respect, the Chamber deemed that the contractual penalty is, in line with its own
jurisprudence, entirely proportionate, representing an amount that corresponded to 10%
of the principal amount due under the Settlement Agreement, and 50% of the total
amount remaining thereunder.
15. Therefore, in accordance with the principle of pacta sunt servanda, the Chamber
concluded that the Respondent is held to pay the Claimant a total outstanding amount of
USD 180,000, as well as a contractual penalty of USD 90,000.
16. Lastly, in light of the Claimant’s request, as well as its own jurisprudence, the Chamber
decided to award the Claimant interest of 5% p.a. on the outstanding amount of
USD 180,000 as from 23 December 2022 until the date of effective payment, and no
interest on the contractual penalty, in accordance with the general legal principle of ne
bis in idem.
ii. Application of art. 12bis of the Regulations
17. 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.
18. To this end, the Chamber confirmed that the player put the club in default of payment of
the amounts sought on 8 December 2022, which had fallen due more than 30 days before,
and granted the club a 10-day deadline to cure such breach of contract
19. 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.
20. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it
has competence to impose sanctions on the Respondent. On account of the above and
bearing in mind that this is the third offense by the club within the last two years, the
Chamber decided to impose fine in the amount of USD 10,000 on the club in accordance
with art. 12bis par. 4 lit. c) of the Regulations.
21. 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.
Page 7
REF FPSD-8971
iii. Compliance with monetary decisions
22. 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.
23. 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.
24. 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.
25. 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.
26. 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
27. 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.
28. 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.
29. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
Page 8
REF FPSD-8971
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Benjamin Acheampong, is partially accepted.
2.
The Respondent, El Zamalek, has to pay to the Claimant, the following amount(s):
- USD 180,000 as outstanding amount plus 5%
23 December 2022 until the date of effective payment;
interest
p.a. as
from
- USD 90,000 as contractual penalty.
3.
Any further claims of the Claimant are rejected.
4.
A fine in the amount of USD 10,000 shall be imposed upon the Respondent (cf. art. 12bis
of the Regulations on the Status and Transfer of Players).
5.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
6.
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.
7. 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.
8. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 9
REF FPSD-8971
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).
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
Page 10