Dispute Resolution Chamber
Texto da decisão
REF FPSD-2450
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 16 June 2021
regarding an employment-related dispute concerning the player Baba Basile
BY:
Alexandra Gómez Bruinewoud (Uruguay) / (Netherlands), DRC Judge
CLAIMANT:
Baba Basile, Cameroon
Represented by Yakub Kizilkaya
RESPONDENT:
Zanaco FC, Zambia
Page 2
REF FPSD-2450
I.
FACTS OF THE CASE
1.
On an unspecified date, the Claimant and the Respondent signed a contract, valid between
1 June 2020 and 31 May 2022, based on which the Claimant would be inter alia entitled
to a monthly salary of Zambian Kwacha (ZMW) 30,000, as well as an appendix to said
contract (hereinafter: the appendix).
2.
3. Art. G of the appendix provides for the following clause: ‘Your total sign-on fee inclusive
of purchase price is USD 35,000. Note that the Zanaco Football Club shall pay Kwacha
equivalent. The payment shall be paid in four (4) monthly instalments from June 2020 with
a first instalment being K300,000.00’.
II.
PROCEEDINGS BEFORE FIFA
3.
On 4 May 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
The claim of the Claimant
4.
The Claimant lodged a claim against the Respondent, arguing to be awarded the total
amount of USD 35,000 (or Zambian Kwacha equivalent), plus 5% interest p.a. as from the
respective due dates.
5.
In his claim, the Claimant explained that the Respondent failed to pay him the sign-on fee
in the amount of USD 35,000, which, according to the Claimant was payable in 4
instalments of USD 8,750 on respectively 30 June, 31 July, 31 August and 30 September
2020.
b.
Position of the Respondent
6.
In its reply, the Respondent rejects the Claimant’s position and argues that it initially
obtained the Claimant as a free agent from the club Zambian Maestro United Zambia FC
(MUYA), with agreeing to pay him an additional amount of USD 35,000 ’once the
registration was completed’.
7.
After consultation with the Zambian FA, it turned out the player was not a free agent and
that MUZA wanted to receive the amount of USD 35,000 as transfer fee. The Respondent
explains that it in good faith transferred USD 3,500 to the Claimant, as he ‘had a personal
issue to sort out in Cameroon’.
8.
As a result, the Respondent concludes that the amount of USD 35,000 is due to MUZA and
not to the Claimant, and furthermore that an amount of USD 15,000 has already been paid
to MUZA.
Page 3
REF FPSD-2450
c. Additional position of the Claimant
9.
In his final comments, the Claimant confirmed that he received an amount of USD 3,500
from the Respondent.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER (DRC)
JUDGE
a.
Competence and applicable legal framework
10.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter also referred to as DRC
judge) analysed whether she was competent to deal with the case at hand. In this respect,
it took note that the present matter was presented to FIFA on 4 May 2021 and submitted
for decision on 16 June 2021. Taking into account the wording of art. 21 of the 2021
edition of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition
of the Procedural Rules is applicable to the matter at hand.
11.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit.
a) and b) of the Regulations on the Status and Transfer of Players (edition February 2021),
the Dispute Resolution Chamber is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between an
Cameroonian player and a Zambian club.
12.
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 Player (edition February 2021), and
considering that the present claim was lodged on 4 May 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b.
Burden of proof
13.
The DRC judge recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which she may consider
evidence not filed by the parties.
14.
In this respect, the DRC judge also recalled that in accordance with art. 6 par. 3 of Annexe
3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
Page 4
REF FPSD-2450
c.
15.
Merits of the dispute
The competence of the DRC judge and the applicable regulations having been established,
the DRC judge entered into the merits of the dispute. In this respect, the DRC judge started
by acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC judge emphasised that in the following
considerations she 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
16.
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 whether or not the total amount
of USD 35,000 as sign-on fee is due.
17.
In this context, the Chamber acknowledged that it its task was to determine whether or
not on the basis of the contract signed between the parties, it could be concluded that the
Respondent and the Claimant had validly agreed upon the payment of an amount of USD
35,000 as sign-on fee for the Claimant signing a contract with the Respondent.
18.
Having analysed the respective clause of the contract, i.e. clause g., the DRC judge noted
that said clause provides for a sign-on fee of USD 35,000, however the wording of said
clause is not unequivocally clear and unambiguous. The clause as such refers to both an
amount was indeed payable to the Claimant as well as a set-off with the ‘purchase price’
of the Claimant.
19.
However, the DRC judge deemed it important to point out that – since the contract is
drafted by the Respondent - we propose to not upheld any ambiguity in the clause against
to the Claimant. The DRC judge was of the opinion that the Respondent should have
avoided a situation in which uncertainty could occur as to which party is entitled to receive
an amount dedicated as sign-on fee.
20.
As such, the DRC judge came to the conclusion that the Claimant is entitled to the amount
of USD 35,000, less the amount of USD 3,500, which the Claimant confirmed to have already
received.
ii. Consequences
21.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of the conditions of the contract
by the Respondent.
22.
In view of all the above and, in particular, the DRC judge decided that, in accordance with
the general legal principle of pacta sunt servanda, the Respondent must fulfil its contractual
Page 5
REF FPSD-2450
obligations towards the Claimant and is to be held liable to pay the Claimant the amount
of USD 31,500, corresponding to the unpaid part of the sign-on fee.
23.
Furthermore, as it remains unclear as to which amounts the instalments correspond to, the
DRC judge took also into account that the first instalment would amount to ZMW 300,000
(approximately USD 13,323) and that a total amount of USD 31,500 should be awarded,
the DRC judge decided that the Claimant is entitled to receive interest at the rate of 5%
p.a. on the amount of EUR 22,500 until the date of effective payment as follows:
USD 9,823, plus 5% interest p.a. as from 1 July 2020.
USD 7,225.67, plus 5% interest p.a. as from 1 August 2020.
USD 7,225.67, plus 5% interest p.a. as from 1 September 2020.
USD 7,225.67, plus 5% interest p.a. as from 1 October 2020.
24.
The DRC judge concluded his deliberations in the present matter by rejecting any further
claim of the Claimant.
iii. Compliance with monetary decisions
25.
Finally, taking into account the consideration under numbers 22. and 23. above, the
Chamber referred to par. 1 lit. and 2 of art. 24bis 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.
26.
In this regard, the DRC 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
27.
Therefore, bearing in mind the above, the DRC 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. 24bis par. 2, 4, and 7 of the Regulations.
28.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
29.
The DRC 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. 24bis
par. 8 of the Regulations.
Page 6
REF FPSD-2450
d.
Costs
30.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
31.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
32.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
Page 7
REF FPSD-2450
IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Baba Basile, is accepted.
2.
The Respondent, Zanaco FC, has to pay to the Claimant, the following amount:
-
USD 31,500 as outstanding remuneration, plus 5% interest p.a. until the effective date of
payment as follows:
on the amount of USD 9,823 as from 1 July 2020;
on the amount of USD 7,225.67 as from 1 August 2020;
on the amount of USD 7,225.67 as from 1 September 2020;
on the amount of USD 7,225.66 as from 1 October 2020.
3.
Full payment (including all applicable interest) shall be made to the bank account set out in the
enclosed Bank Account Registration Form.
4.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not paid 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 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 paid by the end of
the of the three entire and consecutive registration periods.
5.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
6.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 8
REF FPSD-2450
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).
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 9