DRC Overdue Payables
Texto da decisão
REF FPSD-3540
Decision of the
Dispute Resolution Chamber
passed on 24 February 2022
regarding an employment-related dispute concerning the player Elhadj Ousmane Barry
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairperson
Gonzalo de Medinilla (Spain), member
Jorge Gutierrez (Costa Rica), member
CLAIMANT:
Elhadj Ousmane Barry, Guinea
Represented by Mr Redouane Mahrach (RMS Avocats)
RESPONDENT:
Al Hazem, Saudi Arabia
Represented by Ali Abbes & Mohamed Rokbani
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I.
Facts of the case
1.
On 23 September 2020, the Guinean player Elhadj Ousmane Barry (hereinafter: “the player” or
“the Claimant”) and the Saudi club, Al Hazem (hereinafter: “the club” or “the Respondent”)
concluded an employment contract (hereinafter: “the contract”) valid for ten months from 1
October 2020 until 31 July 2021.
2.
Article 4.1 of the contract stated that the club should pay to the player the total amount of USD
300,000 as following:
An advanced payment of USD 100,000 to be paid to the player after the signing of the contract
and after the medical and physical check-up was made by him and
The other USD 200,000 as ten monthly salaries of USD 20,000.
3.
Article 4.4 of the contract stated that the club should pay to the player the amount of USD 30,000
as a bonus for being the club promoted to the Saudi-Arabian League and the amount of USD 1,000
as a bonus for every goal scored throughout the football season if the player managed to score
more than 15 goals.
4.
Article 4.7 of the contract stated, “Option to extend the contract terms for one more season (20212022) in favour of the Club. The player´s contract shall automatically be renewed for a new
2021/2022 sport season with Total Season Value of $ 600,000 NET (the club must notify the player
a 30 days prior the end date of this contract).
If the team goes up to Saudi-Arabië League and does not want to renew the contract, the club will
have to pay amount of $ 180.000 as a penalty clause”.
5.
Article 10 of the contract stated, “The two parties shall seek solving their disputes on the
enforcement of the contract by amicable ways. Any controversy or claim arising out or relating to
this contact, or the breach thereof which may not be resolved amicably between the parties hereto,
shall be administered and settled by the arbitration and thus the dispute shall be submitted
exclusively to SAFF Dispute Resolution Chamber or to exclusively to the CAS-TAS as court of first
instance, been the arbitration held by a Sole Arbitrator at Lausanne Switzerland, in English
language, which decision shall be final and binding, renouncing the parties to any kind of appeal.
This agreement shall be governed by, and construed and interpreted in accordance with the SAFF
and FIFA regulations and, additionally, Swiss Law in order to fill any gap”.
6.
By correspondence dated 1 July 2021, the Claimant put the Respondent in default of payment of
the total amount of USD 289,000 granting the club 15 days to remedy the default. The requested
amount included the following points:
• USD 60,000 as outstanding salaries May, June, and July 2021, which all of them become due
on 01.06.2021 because the club did not notify the intention of renewing the contract for the
2021-2022 season;
• USD 19,000 as bonus for scoring 19 goals;
• USD 30,000 as bonus for being the club promoted to the Professional Saudi League;
• USD 180,000 as a penalty clause due on 01 June 2021 (cf. article 4.7 of the contract).
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In the same notice, the player requested an interest of 5% per annum until the date of the
effective payment as follows:
• 5% p.a. from 01 June 2021 on the amount of USD 60,000;
• 5% p.a. from 24 March 2021 on the amount of USD 15,000;
• 5% p.a. from 02 April 2021 on the amount of USD 2,000;
• 5% p.a. from 21 April 2021 on the amount of USD 1,000;
• 5% p.a. from 22 May 2021 on the amount of USD 1,000;
• 5% p.a. from 01 June 2021 on the amount of USD 180,000.
7.
On 14 July 2021, the club did replied to the player´s default notice stating that they notified their
renunciation to the renewal of the contract on 31 May 2021, i.e. three months before the end of
the registration period and two months before the end of the contract as a result the player was
not entitled to receive the penalty. Moreover, in the same letter, the club stated that they had
proceeded to pay May 2021 and June 2021 salaries and the bonus related to the club´s promotion
enclosing evidence. In addition, the club stated that the remaining outstanding amounts
composed by the salary of July 2021 and the bonus for scoring goals would be paid at the end of
July 2021.
II. Proceedings before FIFA
8.
On 3 September 2021, 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
9.
According to the Claimant, he is entitled to receive the requested amounts since the penalty
clause was due by the club taking into account that it did not want to renew the contract despite
the fact that the club was promoted to the Saudi-Arabian League and he scored the expected
goals in the season in order to receive the bonus, as established in the contract.
10. The requests for relief of the Claimant, were the following:
USD 180,000 as the penalty clause (cf. article 4.7 of the contract).
USD 19,000 as the unpaid bonuses for goals during the season (cf. article 4.4 of the
contract).
an interest of 5% per annum from the date of the notification of the default notice (i.e. 01
July 2021).
imposition of disciplinary sanctions to the club.
b. Position of the Respondent
11. In its response, the Respondent first claimed that FIFA is not competent to deal with this dispute
based on the article 10 of the contract which stipulates that any controversy or claim arising out
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of the contract should be submitted exclusively to the SAFF Dispute Resolution Chamber or to the
TAS as a court of first instance, only if the conflict could not be solved in amicable ways.
12. According to the Respondent, the Claimant is not entitled to receive the penalty based on article
4.7 of the contract depended on the following conditions:
• The lack of notification by the club to renew the contract 30 days before the end of the 20202021 season.
• That the contract was renewed automatically.
• That the club promoted to the Saudi-Arabian League
• That the club decided to retract the renewal.
13. The club held that the first condition did not happen since they notified the player their
renunciation to renew the contract on 31 May 2021, 61 days before the end of the contract. (i.e.
31 July 2021).
14. Moreover, the club stated that they did not cause any damage to the player and hence the claim
for penalty should be rejected.
15. With regard to the bonus for scoring goals, the club argued that the player did not present any
evidence of scoring said goals and consequently his claim should be rejected.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. First of all, the Dispute Resolution Chamber (hereinafter also referred to as “the Chamber” or “the
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 3 September 2021 and submitted for
decision on 24 February 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.
17. Subsequently, the members of the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. b) 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 (August 2021 edition), the Dispute
Resolution Chamber is, in principle, competent to deal with the matter at stake, which concerns
an employment-related dispute with an international dimension between a Guinean player and a
Saudi Arabian club.
18. However, the Chamber noted that the Respondent contested the competence of FIFA’s deciding
bodies in favour of SAFF Dispute Resolution Chamber or CAS-TAS as a court of first instance, in
accordance with article 10 of the contract.
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19. In this respect, the Chamber referred to article 10 of the contract, according to which: “The two
parties shall seek solving their disputes on the enforcement of the contract by amicable ways. Any
controversy or claim arising out or relating to this contact, or the breach thereof which may not be
resolved amicably between the parties hereto, shall be administered and settled by the arbitration
and thus the dispute shall be submitted exclusively to SAFF Dispute Resolution Chamber or to
exclusively to the CAS-TAS as court of first instance, been the arbitration held by a Sole Arbitrator
at Lausanne Switzerland, in English language, which decision shall be final and binding, renouncing
the parties to any kind of appeal. This agreement shall be governed by, and construed and
interpreted in accordance with the SAFF and FIFA regulations and, additionally, Swiss Law in order
to fill any gap”.
20. The Chamber, after analysing the wording of the jurisdiction clause, concluded that such provision
did not clearly and exclusively establish the competence of one deciding body, in accordance with
art. 22 par. 1 lit. b) of the aforementioned Regulations.
21. As a consequence, the Chamber was of the opinion that the first pre-requisite for establishing the
competence of the SAFF NDRC or the TAS-CAS was not met, and therefore, without the need to
enter the analysis of any further requirement, it 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.
22. 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 3 September 2021, the August 2021 edition of said regulations
(hereinafter: “the Regulations”) is applicable to the matter at hand as to the substance.
b. Burden of proof
23. 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
24. 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.
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i. Main legal discussion and considerations
25. 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 payment of certain financial obligations
by the Respondent as per the contract, namely an outstanding bonus and a conditional payment.
26. In this context, the Chamber acknowledged that its task was to determine, based on the evidence
presented by the parties, whether the claimed amounts 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.
27. The DRC took particular note of the fact that, on 1 July 2021, the Claimant put the Respondent in
default of payment of the total amount of USD 289,000, including the amounts requested in the
matter at stake, granting the Respondent 15 days in order to remedy its default.
28. Consequently, the Chamber 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 Chamber noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded between the
parties.
30. Nonetheless, the Chamber pointed out that the Respondent did not provide any evidence of
payment of the amounts claimed as outstanding by the Claimant.
31. Therefore, the Chamber focused its attention to the reasons provided by the Respondent for not
having paid the requested amounts.
32. With regard to the bonus requested by the Claimant for scoring 19 goals (cf. article 4.4 of the
contract), the Chamber observed the Respondent´s allegation that this part of the player´s claim
should be rejected since he did not present any evidence of scoring said goals.
33. In this respect, the Chamber confirmed that the Claimant did not present specific evidence of
having scored the relevant goals triggering the relevant bonus. However, the Chamber took note
that the Claimant provided as evidence a letter, which he received from the Respondent, dated
14 July 2021, in which the club specifically compromised to pay the bonus for scoring goals at the
end of July 2021.
34. As a result, the Chamber was of the opinion that the Claimant sufficiently met his burden of proof
(cf. art. 13 par. 5 of the Procedural Rules) with regard to the requested bonus contractually agreed
by the parties.
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35. With regard to the penalty requested by the Claimant, the Chamber took note that the
Respondent maintained that the Claimant was not entitled to receive it since one of the conditions
established in article 4.7 of the contract was not fulfilled, i.e. the club communicated its decision
not to renew the contract to the player 61 days before its expiry.
36. The Chamber focussed its attention to the content of article 4.7 of the contract, which states,
“Option to extend the contract terms for one more season (2021-2022) in favour of the Club. The
player´s contract shall automatically be renewed for a new 2021/2022 sport season with Total
Season Value of $ 600,000 NET (the club must notify the player a 30 days prior the end date of this
contract).
If the team goes up to Saudi-Arabië League and does not want to renew the contract, the club will
have to pay amount of $ 180.000 as a penalty clause”.
37. After having analysed the aforementioned provision, the Chamber concluded that the payment
of the relevant penalty was subject to two conditions: a) the club being promoted to the Saudi
Arabian League and b) the lack of interest from the club to renew the contract with the player.
38. In this respect, the Chamber pointed out that since both conditions were met and are uncontested
by the parties, the penalty was triggered and the conditional payment of USD 180,000 should be
granted to the player.
39. As a result, the Chamber concluded that no reasonable justification was presented by the
Respondent for not having complied with the terms of the contract.
40. 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 was held liable to pay the Claimant the outstanding amounts deriving from the
contract concluded between the parties, namely the bonus and the penalty.
ii. Consequences
41. Having stated the above, the Chamber observed that the financial obligations deemed as
outstanding in the present case correspond to USD 19,000 as bonus and USD 180,000 as
contractual penalty under the contract.
42. At this stage, the DRC established that the Respondent had delayed a due payment for more than
30 days without a prima facie contractual basis.
43. 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 amounts claimed as
outstanding under the contract, in total USD 199,000, as detailed above.
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44. In addition, taking into consideration 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 amounts as from 16 July 2021 (i.e. date of the default notice plus 15 days)
until the date of effective payment.
iii. Compliance with monetary decisions
45. In continuation, taking into account the consideration under number 42. above, 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.
46. The DRC established that in virtue of art. 12bis par. 4 of the Regulations it has competence to
impose sanctions on the Respondent. Therefore, and in the absence of the circumstance of
repeated offence, the Chamber decided to impose a warning on the Respondent in accordance
with art. 12bis par. 4 lit. a) of the Regulations.
47. In this respect, the DRC 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.
48. 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.
49. 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.
50. 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.
51. 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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52. 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
53. 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.
54. 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.
55. 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, Elhadj Ousmane Barry, is partially accepted.
2.
The Respondent, Al Hazem, has to pay to the Claimant, the total amount of USD 199,000 as
outstanding remuneration plus 5% interest p.a. as from 16 July 2021 until the date of effective
payment.
3.
Any further claims of the Claimant are rejected.
4.
A warning 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 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.
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
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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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