DRC Overdue Payables
Texto da decisão
REF FPSD-3832
Decision of the
Dispute Resolution Chamber
passed on 13 January 2022
regarding an employment-related dispute concerning the player Michael Babatunde
BY:
Frans DE WEGER (The Netherlands), Chairperson
Sihon GAUCI (Malta), member
Laurel VAURASI (Fiji), member
CLAIMANT:
Michael Babatunde, Nigeria
Represented by Dr. Johnny Precious
RESPONDENT:
Wydad Athetic Club, Morocco
Represented by Mr Guy San Bartolomé Sarrey
REF FPSD-3832
I.
Decision of the Dispute Resolution Chamber
1. The player Michael Babatunde and Wydad Athetic Club concluded an employment contract valid as
from 1 July 2018 and for three seasons (2018/2019, 2019/2020 and 2020/2021).
2. According to the contract, the player was entitled to the following:
a) Monthly Salaries and Bonuses
For the 2018/2019 sports season:
• A net monthly salary of 3,000 USD (Three Thousand US dollars)
• And a signing bonus of:
o 122,000 USD (One Hundred Twenty-Two Thousand US Dollars) after receipt of ITC;
o 122,000 USD (One Hundred Twenty-Two Thousand US Dollars) January 2019;
o 120,000 USD (One Hundred Twenty-Two Thousand US Dollars) June 2019.
For the 2019/2020 sports season:
• A net monthly salary of 3,000 USD (Three Thousand US dollars)
• And a signing bonus of:
o 122,000 USD (One Hundred Twenty-Two Thousand US Dollars) September 2019;
o 122,000 USD (One Hundred Twenty-Two Thousand US Dollars) January 2020;
o 120,000 USD (One Hundred Twenty-Two Thousand US Dollars) June 2020.
For the 2020/2021 sports season:
• A net monthly salary of 3,000 USD (Three Thousand US dollars)
• And a signing bonus of:
o 122,000 USD (One Hundred Twenty-Two Thousand US Dollars) September 2020;
o 122,000 USD (One Hundred Twenty-Two Thousand US Dollars) January 2021;
o 120,000 USD (One Hundred Twenty-Two Thousand US Dollars) June 2021.
3. Art. 12 of the contract stipulated the following.
Article 12: Dispute Settlement Procedure
In case of dispute and/or litigation arising from the execution and/or interpretation of the clauses of
this contract, the parties are obliged to have recourse, as a priority, to all means and procedures for an
amicable settlement of the dispute.
In case of failure, the dispute shall be submitted by either party to the Dispute Resolution Chamber of
the Royal Moroccan Football Federation (FRMF).
The decisions of the FRMF's Dispute Resolution Chamber may be appealed to the FIFA.
4. The contract included the following signature:
REF FPSD-3832
5. On 19 October 2020, the parties agreed upon the reduction of the player’s signing bonus by 20% for
the season 2019/2020.
6. On 10 March 2021, the player sent a default notice requesting the payment of USD 742,200, noting
the following:
7. According to a document provided by the club and dated 18 March 2021, the player acknowledged
having received MAD 1,563,000 in full settlement of his sign-on bonuses for the season 2020/2021.
8. The document included the following signature:
REF FPSD-3832
9. On 28 May 2021, the player sent a new default notice for the same amount.
10. On 28 September 2021, Michael Babatunde lodged a claim before FIFA for outstanding remuneration
and requested the following:
- USD 732,2000 as outstanding remuneration,
- USD 300,000 as compensation for emotional torture
- USD 50,000 as legal fees.
11. In this respect, the player underlined that his salary was USD 400,000 per year, whereas the club paid
him as follows:
- USD 122, 000 by cheque issued on 01/06/2018 and credited on 01/06/2018
- USD 20, 000 by cheque issued on 25/04/2019 and credited on 16/05/2019
- USD 5, 000 by cheque issued on 26/05/2019 and credited on 26/07/2019
- USD 5, 000 by cheque issued on 07/01/2020 and credited on 07/01/2020
- USD 5, 000 by cheque issued on 22/01/2020 and credited on 19/02/2020
- USD 20, 000 by cheque issued on 09/07/2020 and credited on 10/07/2020
- USD 10, 000 in cash given on 09/07/2020
- USD 10, 000 in cash given on 09/07/2020
- USD 10, 000 by cheque issued on 09/10/2020 and credited on 25/10/2020
- USD 10, 000 by cheque issued on 09/10/2020 and credited on 08/11/2020
- USD 10, 000 by cheque issued on 09/10/2020 and credited on 19/11/2020
- USD 10, 000 by cheque issued on 09/10/2020 and credited on 27/11/2020
- USD 10, 000 by cheque issued on 09/10/2020 and credited on 01/12/2020
- USD 10, 000 by cheque issued on 07/01/2021 and credited on 12/01/2021
- USD 10, 000 by cheque issued on 09/10/2020 and credited on 15/02/2021
- USD 10, 000 by cheque issued on 07/01/2021 and credited on 25/02/2021
- USD 10, 000 in cash given on 01/07/2021
- USD 72, 800 amounting to 20% of the total 2019/2020 season wages of USD 366, 000 (USD 122, 000
x 3) willingly forfeited by player to support the club during the global pandemic.
- Total due during this period: USD 122, 000 x 9 quarters = USD 1,092,000
- Total received during this period: USD 359,800
Debt: USD 732,200
REF FPSD-3832
12. The Claimant noted that “the Respondent paid the salary of $3000 regularly without fail”, but that it
“only paid the quarterly wages of $122, 000 in full once, on the day the contract was signed, and never
paid it in full or came near paying the full sum at anytime again throughout the period of the contract.”
13. In its reply to the claim, the Respondent contested the competence on the basis of art. 12 of the
contract and was of the opinion that the Moroccan CNRL should be competent.
14. The Respondent considered that the CNRL complies with the minimum procedural standards required
by FIFA.
15. As to the claimed amounts, the club argued the player cannot claim his salaries for the season
2018/2019 since they are time-barred.
16. As to the season 2019/2020, the club explained that it signed an agreement to reduce the salary by
20%.
17. Consequently, the club argued that the player’s remuneration for said season needs to be calculated
as follows:
364.000 USD (122.000 USD + 122.000 USD + 120.000 USD) - 20% = 291.200 $
18. As for the season 2020/2021, the Respondent highlighted that, following the document dated 18
March 2021, the player acknowledged having received MAD 1,563,000 (or USD 172,343.42).
19. The Respondent therefore considered that, at the date of the claim, the player could have claimed
MAD 463,543.42.
20. The Respondent acknowledged a debts of USD 111,419.31.
21. The Respondent further rejected the payment of compensation for “emotional torture” due to a lack
of evidence.
22. In his Replica, the Claimant insisted in the competence of FIFA.
23. In this respect, the Claimant noted that, pursuant to Article 18 of the FRMF’s Statutes, the FRMF’s
Executive Committee members are elected by the FRMF’s General Assembly which is composed of 54
members, 37 of which are club representatives. Since also the FRMF’s General Assembly takes its
decisions by a simple majority, the clubs have the full power to elect not only the members of the
FRMF’s Executive Committee but also, via the FRMF Executive Committee, to appoint the members of
the FRMF NDRC.
24. The Claimant deemed that the Respondent had failed to prove that the “Fédération Royale Marocaine
de Football NDRC” is indeed an independent arbitration tribunal guaranteeing fair proceedings and
respecting the principle of equal representation of players and clubs.
25. As to the possible prescription, the Claimant considered that “the event giving rise to the dispute is
the letter of 11th May 2021 or 28th May 2021”.
26. The Claimant insisted in his claim for USD 742,000 as outstanding remuneration.
REF FPSD-3832
27. The Claimant noted that “the Respondents already have a bad precedent/pattern of bad character.
They acquire players with big salaries they have no intention of paying and at the end of the day they
end up messing up the careers of the players as the boys can barely concentrate because of the vast
sums they are owed and in the end a bitter legal battle erupts.”
28. In its duplica, the Respondent argued thatthe principle of prescription for the second and third
instalments of the signing bonus (2018/2019 season) is definitively acquired.
29. In addition, the Respondent underlined that the sign-on bonus should be reduced by 20%.
30. In view of the above, the Respondent acknowledged a debt of USD 463,543.42, detailed as follows:
- USD 291,200 as sign-on bonus reduced by 20%;
- USD 172,343.42 as sign-on bonus in accordance with the acknowledgement of 18 March 2021.
31. In this respect, the Respondent insisted that it paid USD 572,124.11 to the player.
REF FPSD-3832
II. 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 28 September 2021 and submitted for decision on 13 January 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.
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 b) of the Regulations on the
Status and Transfer of Players (August 2021 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 Nigerian player and a Moroccan 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 (August 2021 edition), and considering that the
present claim was lodged on 28 September 2021, the August 2021 edition 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.
Admissibility
5.
The Chamber further noted that the Respondent contested the competence of FIFA’s deciding bodies
in favour of the National Dispute Resolution Chamber of Morocco (hereinafter: the NDRC of
Morocco), alleging that the latter is competent to deal with any dispute deriving from the relevant
employment contract, in accordance with its clause 12.
6.
The Chamber also noted that the Claimant insisted on the competence of FIFA to adjudicate the
present claim, sustaining that the NDRC of Morocco is not an independent arbitration tribunal
guaranteeing fair proceedings and respecting the principle of equal representation of players and
clubs.
REF FPSD-3832
7.
Taking into account all the above, the Chamber emphasised that in accordance with art. 22 lit. b)
of the Regulations on the Status and Transfer of Players, FIFA is, in principle, competent to hear an
employment-related dispute between a club and a player of an international dimension.
Nevertheless, the parties may explicitly opt in writing for such dispute to be decided by an
independent arbitration tribunal that has been established at national level within the framework
of the association and/or a collective bargaining agreement. Any such arbitration clause must be
included either directly in the contract or in a collective bargaining agreement applicable on the
parties. The independent national arbitration tribunal must guarantee fair proceedings and respect
the principle of equal representation of players and clubs. Equally, the Chamber referred to the
principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard
Regulations, which came into force on 1 January 2008.
8.
In this context, the Chamber pointed out that it should first analyse whether the employment
contract at the basis of the present dispute contained a clear and exclusive jurisdiction clause in
favour of the NDRC of Morocco. In this respect, the Chamber referred to clause 12 of the
employment contract, which stipulated the following:
” Article 12: Dispute Settlement Procedure
In case of dispute and/or litigation arising from the execution and/or interpretation of the clauses
of this contract, the parties are obliged to have recourse, as a priority, to all means and procedures
for an amicable settlement of the dispute.
In case of failure, the dispute shall be submitted by either party to the Dispute Resolution Chamber
of the Royal Moroccan Football Federation (FRMF).
The decisions of the FRMF's Dispute Resolution Chamber may be appealed to the FIFA.”
9.
The Chamber, after analysing the wording of the jurisdiction clause, conclude that such clause was
indeed clear and exclusive in favour of the competence of the NDRC of Morocco.
10. Having established the foregoing, the Chamber turned its attention to the further pre-requisites for
establishing the competence of a NDRC. The Chamber namely referred to principle of equal
representation of players and clubs and underlined that this principle is one of the very fundamental
elements to be fulfilled, in order for a national dispute resolution chamber to be recognised as such.
Indeed, this prerequisite is mentioned in the Regulations on the Status and Transfer of Players, in
the FIFA Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations, which illustrates the
aforementioned principle as follows: “The NDRC shall be composed of the following members, who
shall serve a four-year renewable mandate: a) a chairman and a deputy chairman chosen by
consensus by the player and club representatives (…); b) between three and ten player
representatives who are elected or appointed either on proposal of the players’ associations
affiliated to FIFPro, or, where no such associations exist, on the basis of a selection process agreed
by FIFA and FIFPro; c) between three and ten club representatives (…).” In this respect, the FIFA
Circular no. 1010 states the following: “The parties must have equal influence over the
appointment of arbitrators. This means for example that every party shall have the right to appoint
an arbitrator and the two appointed arbitrators appoint the chairman of the arbitration tribunal
REF FPSD-3832
(…). Where arbitrators are to be selected from a predetermined list, every interest group that is
represented must be able to exercise equal influence over the compilation of the arbitrator list”.
11. With the aforementioned principles in mind, the Chamber went on to examine the documentation
presented by the Respondent.
12. In this sense, the Chamber noted that the club provided during the investigation a copy of the
Moroccan DRC Regulations (April 2021 edition), which provides, inter alia, the following:
"Article 5: Composition
The NDRC is composed of the following members:
a) A President, a vice-president, and a deputy vice-president appointed by the FRMF Board of
Directors;
b) A representative of the clubs of the LNFPA representative of the clubs of the LNFA representative
of the players
A representative of the coaches' group
A representative of the clubs of the LNFF
A representative of the clubs of the LNFD
An administrative representative of the FRMFL
The representative members attend the sessions of the NDRC as soon as the dispute concerns their
entities.”
13. After a careful reading of the above-mentioned article, the Chamber noted, on the one hand, that
the president and his deputies and/or substitutes are appointed by the FRMF's Management
Committee, which would mean that he is not appointed on the basis of the principle of equal
representation of players and clubs.
14. On the other hand, the Chamber also noted that art. 5 mentions a higher number of club
representatives than player representatives, which would also indicate that the Moroccan DRC is
not composed in a way that complies with the principle of equal representation of players and
clubs.
15. Consequently, the Chamber found that it could not consider the Moroccan DRC to be in conformity
with the requirements of art. 22 b) of the Regulations, and therefore had to dismiss the club's
grounds of jurisdiction
16. As a consequence, the Chamber was of the opinion that the club failed to prove that the NDRC of
Morocco indeed respects the principle of equal representation of players and clubs.
17. On account of all the above, the Chamber established that the Respondent’s objection to the
competence of FIFA to deal with the present matter has to be rejected and that the Dispute
Resolution Chamber is competent, on the basis of art. 22 par. 1 lit. b) of the Regulations, to consider
the present matter as to the substance.
REF FPSD-3832
18. At this point, the Chamber referred to art. 23 par. 3 of the Regulations (edition August 2021),
which stipulates that the decision-making bodies of FIFA shall not hear any dispute if more than
two years have elapsed since the facts leading to the dispute arose. The application of this time
limit shall be examined ex officio in each individual case.
19. In this context, the Chamber recalled that the present claim was lodged in front of FIFA on 28
September 2021. Therefore, in line with art. 23 par. 3 of the Regulations, any amounts fallen due
before 28 September 2019 are affected by the statute of limitations.
20. The Chamber noted that, in the present case, the Claimant inter alia requested the payment of
certain amounts due before 28 September 2019. The Chamber thus concluded that the Claimant’s
request is partially time-barred. Consequently, the specific part of the Claimant’s claim related to
the payment of the amounts due before said date is considered inadmissible.
d.
Merits of the dispute
21. 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 abovementioned 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
22. The Chamber noted that the parties concluded an employment contract valid as from 1 July 2018
and for three seasons (2018/2019, 2019/2020 and 2020/2021), according to which the Claimant
was entitled to the amounts quoted in point I. 2 above.
23. Subsequently, the Chamber observed that the Claimant requested the payment of USD 732,200
as outstanding remuneration, noting that the club should have paid him the amount of USD
1,092,000, whereas he only received USD 359,800.
24. On the other hand, the Chamber took note of the Respondent’s position, according to which it
acknowledged a debt of USD 463,543.42, detailed as follows:
- USD 291,200 as sign-on bonus reduced by 20%;
- USD 172,343.42 as sign-on bonus in accordance with the acknowledgement of 18
March 2021.
25. In view of the above, the Chamber understood that the main legal issue at stake is to determine
the exact amount of debt due by the Respondent to the Claimant.
26. In this respect, the Chamber, after duly examining the evidence gathered during the course of the
investigation, noted that the accounting methods used by both parties in order to establish the due
outstanding amounts are highly confusing, as the payments do not respect the contractual dates.
REF FPSD-3832
The Chamber further observer that the present matter further presents certain issues concerning
currency conversion, since the player was paid in local currency.
27. In view of the above, and as a starting point of reference, the Chamber evaluated the default notice
sent on 10 March 2021 (cf. point I. 5 ut supra), while taking into account the partial prescription
of the claim.
28. In addition, the DRC noted player signed a confirmation on 18 March 2021 acknowledging that he
received his salaries for the season 2020/2021.
29. In relation to said document, the Chamber referred to art. 13 par. 3 of the Procedural Rules,
according to which “a chamber has ultimate discretion as to the weight it gives to evidence.”
30. In this regard, and after duly analysing the aforementioned document as well as the position of the
parties, the Chamber considered that it cannot be comfortably satisfied as to the validity of said
document.
31. As a result, the Chamber rejected the applicability of said document.
32. In addition, the Chamber considered that it would not be consistent that the player had
acknowledged payments for the entire season already in March since the player still had to receive
120,000 USD in June 2021.
33. Consequently, the Chambre established that the full amount remains outstanding.
34. In sum, based on above and particularly taking into account the default notice of 10 March 2021,
the Chamber established that, in principle, the outstanding amounts are as follows:
•
•
•
•
•
122,000 USD due in January 2020;
120,000 USD due in June 2020.
122,000 USD September 2020;
122,000 USD January 2021;
120,000 USD due in June 2021.
Total: USD 606,000
35. However, the Chamber also noted that the player agreed upon a 20% reduction for the season
2019, meaning that the final due amounts are as follows:
• 97,600 USD (20% reduction) due in January 2020;
• 96,000 USD (20% reduction) due in June 2020
• 122,000 USD September 2020;
• 122,000 USD January 2021;
• 120,000 USD due in June 2021.
Total: USD 557,600
REF FPSD-3832
36. Consequently, in application of the principle of pacta sunt servanda, the Chamber established that
the Respondent has to pay to the Claimant, the total outstanding amount of USD 557,600, as
agreed in the contract and as explained above.
37. Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the Chambrer decided to award 5% interest p.a. over said amount as
from the due dates.
ii. Compliance with monetary decisions
38. 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.
39. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 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.
40. In this regard, the Chamber 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.
41. Therefore, bearing in mind the above, the Chamber decided that the club must pay the full amount
due (including all applicable interest) to the player within 45 days of notification of the decision,
failing which, at the request of the creditor, 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 club in accordance with art. 24bis par. 2, 4, and
7 of the Regulations.
42. The Chamber 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 of the Regulations.
REF FPSD-3832
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Michael Babatunde, is accepted.
2.
The Respondent, Wydad Athetic Club, has to pay to the Claimant, the outstanding amount of
USD 557,600 plus interest, detailed as follows:
- 97 600 USD as outstanding remuneration plus 5% interest p.a. as from 1 February 2020 until the date of effective payment;
- 96 000 USD as outstanding remuneration plus 5% interest p.a. as from 1 July 2020 until the date of effective payment;
- 122 000 USD as outstanding remuneration plus 5% interest p.a. as from 1 October 2020 until the date of effective payment;
- 122 000 USD as outstanding remuneration plus 5% interest p.a. as from 1 February 2021 until the date of effective payment;
- 120 000 USD as outstanding remuneration plus 5% interest p.a. as from 1 July 2021 until the date of effective payment;
3.
Any further claims of the Claimant are rejected.
4.
A warning (art. 12 bis of the Regulations on the Status and Transfer of Players) is imposed on
the Respondent.
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 (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1.
2.
7.
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.
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.
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.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-3832
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
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