DRC Overdue Payables
Texto da decisão
REF. FPSD-10762
Decision of the
Dispute Resolution Chamber
passed on 21 September 2023
regarding an employment-related dispute concerning
the player Hichem Belkerioui
BY:
Frans de Weger (the Netherlands), Chairperson
Michele Colucci (Italy), member
Dana Mohamed Al Noaimi (Qatar), member
CLAIMANT:
Hichem Belkerioui, Algeria
Represented by JMPM Advogados
RESPONDENT:
Al Ain FC, Saudi Arabia
pg. 2
REF. FPSD-10762
I. Facts of the case
1.
On 27 August 2022, the Algerian player Hichem Belkerioui (hereinafter: Claimant or player)
and the Saudi club Al Ain FC (hereinafter: club or Respondent) concluded an employment
contract (hereinafter: the Contract) valid as from the date of signature until 27 June 2023.
2.
According to the Contract, the Respondent undertook to pay the Claimant a net monthly
salary of USD 10,000, as well as USD 40,000 as a fixed one-time payment due on
1 September 2022.
3.
On 15 September 2022, the Respondent made a payment of USD 1,000.
4.
On 23 October 2022, the Claimant received a car from the Respondent and signed a “Car
Acknowledgement Form” (hereinafter: the Form) in accordance with which it was stated as
follows:
“I, whose data are enclosed above, hereby acknowledge the receipt of the abovementioned
car and I acknowledge to deduct my traffic violations which get recorded on the vehicle from
my salary.”
5.
On 3 November 2022, the Respondent made a payment of USD 9,654.
6.
On 17 December 2022, the Claimant requested a loan of SAR 2,000 from the Respondent,
which was paid to him by the latter on the same day.
7.
On 26 December 2022, the Claimant requested a loan of SAR 48,750 from the Respondent,
which was paid to him by the latter on the same day.
8.
On 5 January 2023, the Respondent made a payment of USD 10,000.
9.
On 18 January 2023, the Claimant requested a loan of SAR 3,000 from the Respondent,
which was paid to him by the latter on the same day.
10. On 15 May 2023, the Respondent made a payment of SAR 15,000.
11. On 31 May 2023, the Claimant put the Respondent in default and requested payment of
USD 60,000 net, corresponding to the salaries between December 2022 and May 2023,
setting a 15 days’ time limit in order to remedy the default.
12. On 16 June 2023, the Claimant requested payment of USD 70,000 net, corresponding to
the above amount plus the salary of June 2023 (which had not yet fallen due), within 10
days.
pg. 3
REF. FPSD-10762
13. At an unspecified point in time, the Respondent paid SAR 37,500 (or USD 10,000) to the
Claimant.
14. On 27 June 2023, the Contract expired.
II. Proceedings before FIFA
15. On 3 July 2023, 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
16. According to the Claimant, the Respondent failed to remit several amounts that had fallen
due under the Contract without any justification.
17. The Claimant specified that he had not been paid by the Respondent since December 2022,
resulting in a total debt of USD 70,000 net.
18. The Claimant equally pointed out that he had put the Respondent in default several times,
to no avail.
19. Consequently, the Claimant requested an outstanding amount of USD 70,000 net, as well
as interest from the respective due date of each unpaid instalment.
b. Position of the Respondent
20. According to the Respondent, the Claimant had disregarded several amounts that
corresponded either to payments remitted or lawful salary deductions, which resulted in
an unjustifiably excessive request for relief.
21. The Respondent asserted that, of the total sum of USD 100,000 net owed over the course
of the Contract (excluding the fixed payment of USD 40,000 net), the Respondent allegedly
paid USD 34,653 – inclusive of the whole salary for December 2022 and part of the salary
for May 2023, in the amount of USD 4,000 / SAR 15,000. An acknowledgement receipt
signed by the Claimant for both amounts was adduced by the Respondent to corroborate
that it had indeed made the above payments.
22. The Respondent also described that the Claimant had requested three loans, in the total
amount of SAR 53,750 net (approximately USD 14,333 net), which it had paid to the
Claimant, and for which the Claimant signed acknowledgements of receipt. As those loans
had never been reimbursed to the Respondent, the latter argued that it was entitled to
deduct these amounts accordingly.
pg. 4
REF. FPSD-10762
23. Furthermore, the Respondent outlined that the Claimant had been given several traffic
fines for which he agreed, pursuant to the Form, to have them deducted from his salary,
since the Respondent was the ultimate party responsible for the payment of those fines,
as the car was in its name. The traffic violations amounted to SAR 3,500.
24. Thus, the Respondent argued that it should only be held liable to pay the Claimant an
amount of USD 50,080.
c. Claimant’s comments as to alleged payments
25. The Claimant provided additional submissions in respect of the alleged payments made by
the Respondent.
26. As to the alleged traffic violations which the Respondent unilaterally deducted, the
Claimant specified that the Respondent provided no proof of having actually incurred these
amounts; in particular, the table provided by the latter represents only an internal
document and the Claimant was never informed of these fines by the Respondent. Thus,
the Claimant argued, the deductions were unlawful and should not be taken into account
for the sake of calculating the overdue amounts to be awarded to the former.
27. Turning to the alleged loans, the Claimant acknowledged having received the amounts,
however under a different concept – namely the advance payment of USD 40,000. He
therefore disagreed that these amounts should be presently deducted as they did not, in
reality, constitute loans that needed to be returned to the Respondent.
28. Lastly, the Claimant argued that the Respondent did not provide a certified translation of
the proofs of payment submitted and that, as a result, these should be disregarded. The
Claimant did not provide an alternative translation.
29. In conclusion, the Claimant reiterated his request for relief.
pg. 5
REF. FPSD-10762
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
30. 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 3 July 2023 and submitted for
decision on 21 September 2023. Taking into account the wording of art. 34 of the
March 2023 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.
31. 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 May 2023 edition), the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between an Algerian player and a Saudi
Arabian club.
32. 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 (October 2022 edition), and
considering that the present claim was lodged on 3 July 2023, the May 2023 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
33. 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
34. 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.
pg. 6
REF. FPSD-10762
i. Main legal discussion and considerations
35. 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 Respondent’s
compliance with certain financial terms under the Contract.
36. In this context, the Chamber acknowledged that it its task was to determine whether, based
on the evidence on file, the Respondent had indeed failed to remit all of the amounts
claimed by the Claimant as outstanding, and if so, whether there was a valid justification to
have defaulted thereon.
37. The Chamber firstly revisited the parties’ submissions, starting with the Claimant, who had
argued that the Respondent had failed to pay a total amount of USD 70,000, corresponding
to seven monthly salaries under the Contract between December 2022 and June 2023.
38. On the other hand, the Chamber took note of the Respondent’s line of argument, namely
that that it had remitted USD 34,653 in the concept of salaries (in addition to the advance
payment of USD 40,000), and that further deductions due to traffic fines and loans should
be made to the overall debt. In any case, the Respondent acknowledges a debt of
USD 50,080.
39. The Chamber also wished to once again emphasise the wording of art. 13 par. 5 of the
Procedural Rules, in accordance with which a party that asserts a certain fact also bears
the burden of proving its veracity.
40. Having stated this, the Chamber proceeded to analyse the matter at hand and turned to
the purported acknowledgement receipts submitted by the Respondent in relation to the
salary for December 2022 and, partially, May 2023. In this respect, the Chamber noted that
the Claimant, though contesting their validity due to the lack of a certified translation, does
not challenge the fact that they were signed by him, or their authenticity in general.
41. Indeed, the Chamber opined, that the proofs of payment were, in spite of no certified
translation, sufficiently intelligible to be considered for the sake of determining whether or
not the respective obligation(s) had been complied with. The Chamber deemed that the
Claimant was merely attempting to rely on a procedural technicality – i.e. the lack of a
certified translation – rather than genuinely challenging the authenticity of the receipts, or
the remittance of the payments in question.
42. Consequently, the Chamber considered that the Respondent had, by virtue of the above
receipts, met the burden of proving that the salary for December 2022 and the partial
salary for May 2023, in the respective amounts of USD 14,000 and USD 4,000, had been
remitted to the Claimant.
pg. 7
REF. FPSD-10762
43. As for the amounts of USD 1,000, USD 10,000 and USD 9,654 corresponding to sporadic
salary payments alleged by the Respondent, the Chamber considered that the same line of
reasoning as with the December 2022 and May 2023 salaries was applicable, and
consequently decided to recognise these payments.
44. Furthermore, the Chamber wished to specify that, contrary to the Claimant’s allegation, the
proofs of payment for the amounts of USD 10,000 and USD 9,654 are partially in English
and, thus, in any case admissible.
45. Subsequently, the Chamber turned to the question of the alleged loans offered to the
Claimant in the amount of SAR 53,750, or approximately USD 14,333 net.
46. The Chamber noted, in this respect, that the Claimant firmly argued that the payments
pertained to the advance of costs of USD 40,000. Notwithstanding, the Chamber was
convinced by the line of reasoning by the Respondent, who provided an acknowledgement
of receipt which expressly states that these payments correspond to loans.
47. Again, the Chamber observed the line of reasoning provided by the Claimant that no
certified translation was provided by the Respondent. However, as above, the Chamber
considered that merely pointing out the lack of a certified translation was not sufficient, in
the case at hand, to undermine the credibility of the evidence submitted by the
Respondent.
48. Consequently, the Chamber deemed these amounts as loans paid by the Respondent to
the Claimant, which, as a result of not being repaid by the latter, should be deducted from
the overall outstanding remuneration to be potentially awarded to the Claimant.
49. Lastly, the Chamber went on to consider the question of the traffic deductions. In this
respect, the Chamber was convinced by the Claimant’s line of reasoning, as the Respondent
has indeed not provided a copy of the actual fines from the respective authorities, and only
an internal table summarising them.
50. Taken out of context, the Chamber opined, this table did not meet the burden of proving
that the amounts had actually been paid as a result of the Claimant’s violations, and would
thus be deductible from the Claimant’s salary.
51. Consequently, the Chamber proposed to reject the aforesaid line of argument of the
Respondent and established that the amounts deducted as a result of the alleged fines
must be reimbursed and awarded to the Claimant.
pg. 8
REF. FPSD-10762
52. Therefore, and in conclusion, the Chamber argued that the following amounts could be
held as either having been remitted or lawfully deducted from the overall amount of
USD 100,000 that was due since the beginning of the Contract:
-
USD 1,000 on 15 September 2022;
USD 9,654 on 3 November 2022;
USD 10,000 on 5 January 2023;
SAR 37,500 / USD 10,000 corresponding to the salary for December 2022;
SAR 15,000 / USD 4,000 corresponding to part of the salary for May 2023;
SAR 53,750 / USD 14,333 corresponding to unreturned loans
= USD 48,987 total
53. With the above in mind, the Chamber established that the residual debt of the Respondent
towards the Claimant amounted to USD 100,000 net minus USD 48,987 = USD 51,013 net.
54. 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
which were outstanding under the contract at the moment of the termination, i.e.
USD 51,013 net.
55. Furthermore, and taking into consideration the Claimant’s request and the constant
practice of the Chamber in this regard, the latter decided that the Respondent is liable to
pay the Claimant interest on the outstanding amounts at the annual rate of 5% from the
following dates:
-
On the amount of USD 1,013 net, as from 1 February 2023 until the date of
effective payment;
On the amount of USD 10,000 net, as from 1 March 2023 until the date of effective
payment;
On the amount of USD 10,000 net, as from 1 April 2023 until the date of effective
payment;
On the amount of USD 10,000 net, as from 1 May 2023 until the date of effective
payment;
On the amount of USD 10,000 net, as from 1 June 2023 until the date of effective
payment;
On the amount of USD 10,000 net, as from 28 June 2023 until the date of effective
payment.
ii. Application of art. 12bis RSTP
56. 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
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REF. FPSD-10762
without a prima facie contractual basis may be sanctioned in accordance with art. 12bis
par. 4 of the Regulations.
57. To this end, the Chamber confirmed that the player put the club in default of payment of
the amounts sought, which had fallen due more than 30 days before, and granted the club
a 10-day deadline to cure such breach of contract.
58. Accordingly, the Chamber confirmed that the club had delayed a due payment without a
prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
59. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the club. On account of the above and bearing in mind
that this is the 4th offense by the club within the last two years (previous three offences:
FPSD-4557; FPSD-4612; FPSD-5449), the Chamber decided to impose a fine in the amount
of USD 7,500 on the Respondent, pursuant to art. 12bis par. 4 lit. c) of the Regulations.
60. In this connection, the Chamber highlighted that a repeated offence will be considered as
an aggravating circumstance and lead to a more severe penalty in accordance with
art. 12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
61. 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.
62. 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.
63. 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.
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REF. FPSD-10762
64. 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.
65. 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
66. 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.
67. 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.
68. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 11
REF. FPSD-10762
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Hichem Belkerioui, is partially accepted.
2.
The Respondent, Al Ain FC, must pay to the Claimant the following amount(s):
- USD 51,013 net as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount of USD 1,013 as from 1 February 2023 until the date of
effective payment;
- 5% interest p.a. over the amount of USD 10,000 as from 1 March 2023 until the date of
effective payment;
- 5% interest p.a. over the amount of USD 10,000 as from 1 April 2023 until the date of
effective payment;
- 5% interest p.a. over the amount of USD 10,000 as from 1 May 2023 until the date of
effective payment;
- 5% interest p.a. over the amount of USD 10,000 as from 1 June 2023 until the date of
effective payment;
- 5% interest p.a. over the amount of USD 10,000 as from 28 June 2023 until the date of
effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A fine of USD 7,500 shall be 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 of the ban shall
be of up to three entire and consecutive registration periods.
pg. 12
REF. FPSD-10762
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 art. 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
pg. 13
REF. FPSD-10762
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 Governing the Football
Tribunal).
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pg. 14