DRC Overdue Payables
Texto da decisão
REF FPSD-6317
Decision of the
Dispute Resolution Chamber
passed on 1 September 2022
regarding a contractual dispute concerning the player Afriye Acquah
BY:
Frans de Weger (the Netherlands), Chairperson
Alexandra Gómez Bruinewoud (Uruguay & the Netherlands), member
José Luis Andrade (Portugal), member
CLAIMANT:
Afriye Acquah, Ghana
Represented by Mr Cesare di Cinto
RESPONDENT:
Al Batin
Represented by Messrs Nasr Eldin Azzam and Abdelrahman Hashish
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REF FPSD-6317
I.
Facts of the case
1.
On 21 December 2021, the Ghanaian player, Afriye Acquah (hereinafter: the Claimant),
and the Saudi Arabian club, Al Batin (hereinafter: the Respondent) signed a mutual
termination agreement (hereinafter: the Termination Agreement), by way of which the
employment relationship that previously existed between the parties was mutually
terminated.
2.
In accordance with the Termination Agreement, the Respondent undertook to pay to the
Claimant all remuneration under the original employment contract which remained
outstanding at the date of signature of said Agreement, in a total amount of USD 550,002,
by no later than 31 December 2021.
3.
By correspondence dated 18 February 2022, the Claimant put the Respondent in default
of payment of USD 280,831.68, which the Claimant calculated as follows:
-
Under the Termination Agreement, the Claimant was entitled to payment of
USD 550,002 by no later than 31 December 2021;
By 18 February 2022, the Respondent had only effected payment in the amount of
USD 269,170.32;
USD 550,002 – USD 269,170.32 = USD 280,831.68
The Claimant set a deadline for the Respondent of 15 days in order to remedy the default,
to no avail.
II. Proceedings before FIFA
4.
On 14 June 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
5.
According to the Claimant, the Respondent failed to comply with the financial terms of
the Termination Agreement by not making the entire payment stipulated thereunder on
time.
6.
The Claimant argued that, despite having been put in default for the remaining amount
of USD 280,831.68 and being granted a 15-day deadline, the Respondent failed to remedy
the contractual breach, giving rise to the present claim.
7.
The Claimant requested payment of USD 280,831.68, corresponding to the overall
amount outstanding under the Termination Agreement, as well as interest of 5% p.a.
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REF FPSD-6317
applicable on the claimed amount, as from 21 December 2021 until the date of effective
payment.
b. Position of the Respondent
8.
In its reply to the claim, the Respondent acknowledged the non-payment of the due
amounts, justifying that the default was caused by a case of force majeure.
9.
In particular, the Respondent outlined that it is funded by public monies and that it ceased
to receive funding, which is out of its own control.
10. Furthermore, the Respondent wished to highlight that it demonstrated good faith by not
contesting the Claimant’s entitlement to the outstanding amount, and by allegedly
negotiating with the Claimant as to organising a payment schedule for the outstanding
amount.
11. The Respondent, therefore, limited its request for relief to the non-imposition of sporting
sanctions.
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 11 June 2022 and submitted
for decision on 1 September 2022. Taking into account the wording of art. 34 of the June
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 (July 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 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 (July 2022), and
considering that the present claim was lodged on 11 June 2022, the March 2022 edition
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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 of the fact that the parties strongly disputed the lawfulness of the
non-payment of the amount of USD 280,831.68, in accordance with the Termination
Agreement.
18. In this context, the Chamber wished to point out that both parties expressly agreed as to
the fact that the amount itself, i.e. USD 280,831.68 under the Termination Agreement,
remained unpaid.
19. Thus, the Chamber acknowledged that it was its task to determine, based on the evidence
presented by the parties, whether the Respondent had a valid justification for not having
complied with its financial obligations under the Termination Agreement.
20. In this respect, the Chamber took note of the Respondent’s argumentation that the
amount owed to the Claimant remained unpaid due to a lack of funding from its financial
sponsor, thereby giving rise to a case of force majeure.
21. In this context, the Chamber wished to point out that the Respondent failed to submit
any evidence in order to substantiate its claim that there was, indeed, a case of force
majeure and a resulting inability to make the payments stipulated under the Termination
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Agreement. Thereby, the Chamber considered that the Respondent failed to meet the
burden of proving that the payments under the Contract could be challenged.
22. Consequently, the Chamber concluded that, as no situation of force majeure could be
established in the present matter, the Respondent has to comply with the contractually
agreed payments as stipulated per the Termination Agreement.
23. In view of the foregoing, and bearing in mind the general legal principle of pacta sunt
servanda, which in essence means that agreements must be respected by the parties in
good faith, the Respondent is held liable to pay the Claimant the outstanding amount
deriving from the Termination Agreement, namely USD 280,831.68.
ii. Consequences
24. 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.
25. In this respect, the Chamber recalled that the amount claimed by the Claimant, i.e.
USD 280,831.68, was confirmed by the Respondent as having remained unpaid.
26. As a consequence, and in accordance with the general legal principle pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay the Claimant the amount
established as outstanding under the Termination Agreement, namely USD 280,831.68.
27. In addition, taking into account 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 amount as from 1 January 2022 until the date of effective
payment.
iii. Art. 12bis of the Regulations
28. 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 basis may be sanctioned in accordance with art. 12bis par. 4 of the
Regulations.
29. To this end, the Chamber confirmed that the Claimant put the Respondent in default of
payment of the amounts sought on the date of 18 February 2022, and that said amounts
had been overdue for more than 30 days. Moreover, the Chamber confirmed that the
Claimant granted the Respondent a 15-day deadline to cure such breach.
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30. Accordingly, it was established that the Respondent had delayed a due payment without
a prima facie contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations were partially met in the case at hand.
31. The Chamber further established that, by virtue of art. 12bis par. 4 of the Regulations, it
had competence to impose sanctions on the Respondent. On account of the above and
bearing in mind that this was the 5th offence committed by the Respondent within the last
two years (1st offence: FPSD-2174/svi, notified to parties on 7 June 2021;
2nd offence: FPSD-3108/pmu, notified to parties on 5 November 2021; 3rd offence
FPSD-5225/plv, notified to parties on 25 April 2022; 4th offence FPSD-6053/chz, notified to
parties on 4 August 2022), the Chamber decided to impose a reprimand and a fine of
USD 40,000 in accordance with art. 12bis par. 4 lit. c) of the Regulations.
32. In this connection, the Chamber wished to highlight that a repeated offence will be
considered as an aggravating circumstance and lead to a more severe penalty in
accordance with art. 12 par. 6 of the Regulations.
iv. Compliance with monetary decisions
33. 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.
34. 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.
35. 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.
36. 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.
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37. 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
38. 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.
39. 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.
40. 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, Afriye Acquah, is partially accepted.
2.
The Respondent, Al Batin, has to pay to the Claimant USD 280,031.68 as outstanding
amount plus 5% p.a. as from 1 January 2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A reprimand shall be imposed on the Respondent.
5.
The Respondent is ordered to pay a fine of USD 40,000 to FIFA within 30 days as from the
notification of this decision to the following bank account, with clear reference to the case
FPSD-6317:
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
▪
6.
Full payment of the amounts mentioned in point 2. (including all applicable interest) shall
be made to the bank account indicated in the enclosed Bank Account Registration Form.
7.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players if full payment
of the amounts 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.
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8. 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.
9. 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).
CONTACT INFORMATION
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