DRC Overdue Payables
Texto da decisão
REF FPSD-5875
Decision of the
Dispute Resolution Chamber
passed on 3 August 2022
regarding an employment-related dispute concerning the player
Fakhreddine Ben Youssef
BY:
Philippe DIALLO (France)
CLAIMANT:
Fakhreddine Ben Youssef, Tunisia
Represented by Anis Ben Mime
RESPONDENT:
Ismaily SC, Egypt
Represented by Sport Makers
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REF FPSD-5875
I.
Facts of the case
1. On 14 November 2020, the Tunisian player Fakhreddine Ben Youssef (hereinafter: the
Claimant or the Player) and the Egyptian club Ismaily SC (hereinafter: the Respondent or the
Club) concluded an employment contract (hereinafter: the contract), valid as from the
Player’s arrival to the Club until 31 July 2021.
2. In accordance with clause 3 of the contract, the Player was entitled, inter alia, to a total
amount of USD 270,000 net for season 2020/2021 and was divided as follows:
“- An advance payment Corresponding to 100,000 USD Net (only one hundred thousand US
Dollars Net) on the date of signing this contract and upon passing the medical examination by
the club.
- Net Monthly salary corresponding to 21,250 USD (only twenty-one thousand and two hundred
fifty US dollars) to be paid on eight months’ salary.”
3. On 1 August 2021, the Claimant and the Respondent signed an addendum to the contract
(hereinafter: the Addendum) and extended the contract’s term until 31 August 2021. Under
the Addendum, the Claimant was entitled to an additional amount of USD 21,250.
4. On 18 March 2022, the Claimant put the Respondent in default for the outstanding amount
of USD 42,500 corresponding to the unpaid salaries for the months of July and August
2021. The Claimant granted a 15-day deadline to the Respondent to comply with its
contractual obligations, however, to no avail.
II. Proceedings before FIFA
5. On 28 April 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
6. The Player claimed to be entitled to USD 42,500 corresponding to the outstanding salaries
(July and August 2021) plus an indemnity for late payment equivalent to 5% p.a. from 15
May 2020. In addition, the Claimant requested sporting sanctions to be applied on the
Respondent.
b. Position of the Respondent
7. The Respondent has not contested the amounts due for July 2021 and August 2021.
However, it contested the interest rate or any penalty. The Respondent argued that it had
faced a force majeure event considering that the Club’s sponsors lack of compliance of their
payment obligations.
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8. The requests for relief of the Respondent were the following:
-
To establish that the Club shall not pay any interest rate or any penalty of whatsoever
kind related to the Player’s claim.
To rule that the Player is only entitled to the outstanding salaries of July 2021 and
August 2021 without any further consequences of any kind.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
9. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter: 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 April 2022 and submitted for
decision on 3 August 2022. Taking into account the wording of art. 34 of the June 2022
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.
10. Subsequently, the Single Judge 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 (July 2022 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 Tunisian player
and an Egyptian club.
11. 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 (July 2022 edition), and
considering that the present claim was lodged on 28 April 2022, the March 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
12. 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 he may
consider evidence not filed by the parties, including without limitation the evidence
generated by or within the Transfer Matching System (TMS).
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c. Merits of the dispute
13. The 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
14. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note that the Claimant lodged a claim for overdue payables against the
Respondent.
15. The overdue amount of USD 42,500 was not contested by the Respondent. In view of the
foregoing and in line with the general legal principle of pacta sunt servanda, the Single Judge
decided that the Player is entitled to the outstanding remuneration sought.
16. In respect to the interest claimed (5% p.a. from 15 May 2020), the Single Judge also took
note that the Respondent contested the payment of the interests. In doing so, the
Respondent argued that it had faced a force majeure event and consequently, it was not
able to pay the remuneration.
17. The Single Judge stressed that it is for a party invoking force majeure to establish the
existence of said event under the applicable regulations as well as the consequences that
derive in connection thereto. The analysis of whether a situation of force majeure existed
has to be considered on a case-by-case basis, taking into account all the relevant
circumstances.
18. Subsequently, the Single Judge observed that, in the case at stake, the Respondent
referred to the failure of the sponsors to pay its financial obligation towards the
Respondent, however, no documentation was provided in this regard.
19. The Single Judge concluded that the Respondent was not able to demonstrate, through
substantial evidence, that the situation faced was to be legally considered a situation of
force majeure. Based on the foregoing, the Single Judge concluded that Respondent had
not provided a valid justification for the non-payment of the Claimant’s salaries.
20. In light of the above, and taking into consideration the Player’s request as well as the
constant practice of the Football Tribunal in this regard, the Single Judge decided to award
the Player interest at the rate of 5% p.a. on the outstanding amount as from the next day
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as of the due dates and not from 15 May 2020 as claimed by the Player until the date of
effective payment.
ii. Art 12bis of the Regulations
21. Subsequently, 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.
22. To this end, the Single Judge confirmed that the Claimant put the Respondent in default
of payment of the amounts sought, which had fallen due more than 30 days before, and
granted the Respondent a 15-day deadline to cure such breach of contract.
23. Accordingly, the Single Judge confirmed that the Respondent 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.
24. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations it
has competence to impose sanctions on the Respondent. Based on the above and bearing
in mind that this is the first offense by the Club within the last two years, the Single Judge
decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a)
of the Regulations.
25. In this connection, the Single Judge 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
26. 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.
27. 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.
28. 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
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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.
29. 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.
30. 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
31. 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.
32. 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.
33. Lastly, the Single Judge concluded the 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, Fakhreddine Ben Youssef, is partially accepted.
2.
The Respondent, Ismaily SC, has to pay to the Claimant, the following amounts:
- EUR 21,250 as outstanding remuneration plus 5% interest p.a. as from 1 August 2021
until the date of effective payment;
- EUR 21,250 as outstanding remuneration plus 5% interest p.a. as from 1 September 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 of the ban
shall be of up to 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 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
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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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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