DRC Overdue Payables
Texto da decisão
REF FPSD-4975
Decision of the
Dispute Resolution Chamber
passed on 20 April 2022
regarding an employment-related dispute concerning the player Ayman Ben Mohamed
BY:
Andre dos Santos Megale (Brazil)
CLAIMANT:
Ayman Ben Mohamed, Republic of Ireland & Tunisia
Represented by Mr Hortense Douard
RESPONDENT:
Denizlispor Kulubu, Turkey
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REF FPSD-4975
I.
Facts of the case
1.
On 14 January 2019, the player Ayman Ben Mohamed (hereinafter: “the player” or “the Claimant”)
and the French club, Havre Athletic Club (hereinafter: “Havre”) signed an employment contract
valid from 14 August 2019 until 30 June 2022.
2.
In January 2021 Havre transferred the player on a loan basis to the Turkish club, Denizlispor Kulubu
(hereinafter: “the club” or “the Respondent”) until June 2021.
3.
On 29 January 2021, the player and the club concluded an employment contract (hereinafter: “the
contract”) valid from 29 January 2021 until 31 May 2021.
4.
Article 3 of the contract stated that the player was entitled to receive the total salary amount of
EUR 165,000 net, payable as follows:
EUR 45,000 net, due on 29 January 2021;
EUR 15,000 net, due on 12 February 2021;
EUR 26,250 net, due on 28 February 2021;
EUR 26,250 net, due on 31 March 2021;
EUR 26,250 net, due on 30 April 2021;
EUR 26,250 net, due on 31 May 2021.
5.
Article 3 j) of the contract stated that the club should provide medical insurance to the player.
6.
Article 6 of the contract stated that if the club fails to pay for more than 60 days, the player should
notify the club in writing and give a deadline of 15 days to fulfil their obligations. If the due
amounts remained unpaid after that time, the player would be able to terminate de contract
unilaterally and he should be entitled to take legal actions before FIFA to claim his outstanding
remuneration.
7.
By correspondence dated 10 May 2021, the Claimant put the Respondent in default of payment
of EUR 93,750 as outstanding salaries from February 2021 until April 2021, granting 15 days to
remedy the default, to no avail.
8.
On 1 October 2021, the player sent a second default notice to the club requesting the payment of
the total net amount of EUR 120,000 as outstanding salaries from February 2021 until May 2021.
Moreover, in the same letter the player stated that he suffered a severe knee injury during the
contract and that the club did not take any precautions required and expected from an employer.
The player explained that he had to cover himself medical costs including the surgery and
consequently requested from the club the reimbursement of the amount of EUR 2,520.60. The
player granted 7 days to the club to remedy its default, to no avail.
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II. Proceedings before FIFA
9.
On 28 January 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
10. According to the Claimant, the Respondent owed him outstanding salaries and some medical costs
for a total amount of EUR 122,520.60 plus interest.
11. The requests for relief of the Claimant, were the following:
EUR 120,000 as outstanding salaries from February 2021 until May 2021 and
EUR 2,520.60 as medical expenses.
12. With regard to the medical expenses the player enclosed the following evidence:
1) Medical fees dated 7 May 2021 for an amount of EUR 100;
2) Medical fees dated 7 May 2021 for an amount of EUR 55;
3) Medical fees dated 7 May 2021 for an amount of EUR 55;
4) Receipt dated 7 May 2021 for a doctor Khiami´s appointment of EUR 100;
5) Receipt dated 7 May 2021 for an MRI of EUR 171.09;
6) Medical fees dated 11 May 2021 for an amount of EUR 80;
7) A receipt dated 11 May 2021 for an amount of EUR 543.40 related to the anaesthesia
needed for the surgery;
8) Pharmacy receipt number 633038 dated 17 May 2021 for EUR 34.40;
9) Pharmacy receipt number 633040 dated 17 May 2021 for EUR 78.75;
10) Medical fees dated 18 May 2021 for the knee surgery performed on 18 May 2021 for an
amount of EUR 1,241.64;
11) Laboratory costs paid by the player on 18 May 2021 for an amount of EUR 80;
12) Receipt dated 19 May 2021 for medical exams amounting to EUR 171.09;
13) Medical fees dated 20 May 2021 for EUR 15.10.
13. Moreover, the player requested the application of an interest of 5% per annum since 1 October
2021, i.e. date of the second default notice.
14. In addition, the player requested that the club should cover the procedural costs of this
proceeding.
15. The player argued that at the end of March 2021 (i.e. during his loan with the club), he was injured
in his knee. He explained that after the injury, a doctor did not supervise him and after some days
of rest, he started training again. The player further argued that on 24 April 2021 during a match,
he had to leave the pitch and after that, he was not able to play football again.
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16. Furthermore, the player stated having requested authorisation to the club to go to France for
medical examination, which showed rupture of his knee ligaments. The player underwent a knee
surgery in France on 19 May 2021.
17. According to the player, the club did not provide support or information regarding social
protection. Moreover, the player argued that his injury was correctly diagnosed late during the
month of May 2021 due to the absence of serious medical support by the club. Furthermore, the
player argued that the club abandoned him and that he had to cover all the medical costs of his
knee surgery.
b. Position of the Respondent
18. In its reply to the claim, the Respondent rejected the Claimant´s requests and stated that the
player accepted to be treated by the doctors and that they provided a health insurance to him.
For those reasons, the club rejected the request of the player to pay for the treatment of his knee
injury, since it was done without the club´s knowledge.
19. In particular, the club argued that based on the contract the player could only be examined and
treated by the club.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
20. First of all, the Dispute Resolution Chamber (hereinafter also referred to as “the Single Judge”)
analysed whether he was competent to deal with the case at hand. In this respect, he took note
that the present matter was presented to FIFA on 28 January 2022 and submitted for decision on
20 April 2022. Taking into account the wording of art. 34 of the October 2021 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.
21. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. b)
of the Regulations on the Status and Transfer of Players (March 2022 edition), he is competent to
deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between an Irish/Tunisian player and a Turkish club.
22. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and
2 of the Regulations on the Status and Transfer of Players (March 2022 edition), and considering
that the present claim was lodged on 28 January 2022, the August 2021 edition of said regulations
(hereinafter: “the Regulations”) is applicable to the matter at hand as to the substance.
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b. Burden of proof
23. The Single Judge 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 Single Judge 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
24. His competence and the applicable regulations having been established, the Single Judge entered
into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However, the
Single Judge emphasised that in the following considerations he will refer only to the facts,
arguments and documentary evidence, which he considered pertinent for the assessment of the
matter at hand.
i. Main legal discussion and considerations
25. The foregoing having been established, the Single Judge moved to the substance of the matter,
and took note of the fact that the parties strongly dispute the payment of certain financial
obligations by the Respondent, i.e. outstanding remuneration and medical expenses.
26. In this context, the Single Judge acknowledged that his task was to determine, based on the
evidence presented by the parties, whether the outstanding salaries had in fact remained unpaid
by the Respondent and, if so, whether the latter had a valid justification for not having complied
with its financial obligations. Moreover, the Single Judge acknowledged the Claimant´s request
for medical costs and underlined that his task was to determine if the Claimant was entitled to
receive them.
27. In this context, the Single Judge took particular note of the fact that, on 10 May 2021 and on 1
October 2021, the Claimant put the Respondent in default of payment of the requested amounts,
settling a time limit of 15 days and 7 days respectively in order to remedy its default.
28. Consequently, the Single Judge concluded that the Claimant had duly proceeded in accordance
with art. 12bis par. 3 of the Regulations, which stipulates that the creditor (player or club) must
have put the debtor club in default in writing and have granted a deadline of at least ten days for
the debtor club to comply with its financial obligation(s).
29. Subsequently, the Single Judge noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with its financial contractual obligations. Therefore, the Single
Judge focussed his attention to the reasons provided by the Respondent not to honour its
contractual obligations.
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30. In this respect, the Single Judge observed that the Respondent did not present any evidence of
having paid the four monthly salaries (from February to May 2021) requested by the Claimant as
outstanding. What is more, no reasonable justification was presented by the Respondent for not
having complied with the payment of salaries in accordance with the article 3 of the contract.
31. Furthermore, the Single Judge acknowledged that the Respondent replied to the claim for medical
costs (i.e. EUR 2,520.60) contesting the Claimant´s allegations arguing, inter alia, that the player
accepted to be treated by doctors without the knowledge of the club and that the latter provided
a health insurance to the player, without providing any evidence.
32. In this respect, the Single Judge was keen to emphasise that the Claimant requested the
reimbursement of medical expenses emerged from the treatment of his knee injury and presented
several documentary evidence of having paid the total amount of EUR 2,520.60.
33. Consequently, the Single Judge concluded that the Respondent´s argumentation related to the
non-payment of the medical expenses shall be set aside.
34. In view of the foregoing and bearing in mind the basic legal principle of pact 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 amounts deriving from the contract concluded
between the parties, namely: - EUR 120,000 as outstanding salaries and – EUR 2,520.60 as medical
expenses.
ii. Consequences
35. Having stated the above, the Single Judge turned their attention to the question of the
consequences of the contractual breach committed by the Respondent.
36. At this stage, the Single Judge established that the Respondent had delayed a due payment for
more than 30 days without a prima facie contractual basis.
37. Consequently, and in accordance with the general legal principle of pacta sunt servanda, the
Single Judge reiterated that the Respondent is liable to pay to the Claimant the amounts deriving
from the contract, i.e. EUR 122,520.60.
38. In addition, taking into consideration the Claimant’s request as well as the constant practice of
the Dispute Resolution Chamber in this regard, the Single Judge decided to award the Claimant
interest at the rate of 5% p.a. on the outstanding amount as from 1 October 2021 until the date
of effective payment.
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iii. Compliance with monetary decisions
39. In continuation, taking into account the consideration under number 36. above, the Single Judge
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.
40. The Single Judge established that in virtue of art. 12bis par. 4 of the Regulations it has competence
to impose sanctions on the Respondent. In this context, the Single Judge highlighted that, within
last 2 years, the Respondent had already been found to have delayed a due payment for more
than 30 days without a prima facie contractual basis, as a result of which a warning and a
reprimand, respectively, had been imposed on the Respondent by the relevant deciding bodies of
previous decisions (i.e. ref. FPSD-2418 and FPSD-2889).
41. In this respect, the Single Judge wished to highlight that a repeated offence will be considered as
an aggravating circumstance and lead to more severe penalty in accordance with art. 12bis par. 6
of the Regulations.
42. Bearing in mind the above, the Single Judge decided to impose a fine on the Respondent in
accordance with art. 12bis par. 4 lit. c) of the Regulations. Furthermore, taking into consideration
the amount due of EUR 122,520.60 the Single Judge regarded a fine amounting to USD 37,500 as
appropriate and hence decided to impose said fine on the Respondent.
43. Finally, taking into account the applicable Regulations, the Single Judge 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.
44. In this regard, the Single Judge 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.
45. Therefore, bearing in mind the above, the Single Judge 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.
46. 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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47. The Single Judge 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
48. The Single Judge 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 Single Judge decided that no procedural costs were to be imposed on the
parties.
49. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25 par. 8
of the Procedural Rules, and decided that no procedural compensation shall be awarded in these
proceedings.
50. Lastly, the Single Judge concluded his 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, Ayman Ben Mohamed, is accepted.
2.
The Respondent, Denizlispor Kulubu, has to pay to the Claimant, the total amount of EUR
122,520.60 as outstanding remuneration plus 5% interest p.a. as from 1 October 2021 until the
date of effective payment.
3.
The Respondent is ordered to pay a fine in the amount of USD 37,500. The fine is to be paid within
30 days of notification of the present decision to FIFA to the following bank account with reference
to case nr. FPSD-4975:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
Please mention the applicable reference number
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 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).
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