Dispute Resolution Chamber
Texto da decisão
REF 21-00085 / FPSD-626
Decision of the
Dispute Resolution Chamber
passed on 15 July 2021
regarding an employment-related dispute concerning the player Djamel Eddine Benlamri
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Stéphane Burchkalter (France), member
Abu Nayeem Shohag (Bangladesh), member
CLAIMANT:
Al Shabab, Saudi Arabia
Represented by Khalied Allie
RESPONDENT:
Djamel Eddine Benlamri, Algeria
Represented by Pedro Macierinha
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I.
FACTS OF THE CASE
1.
On 4 May 2017, the Algerian player, Djamel Eddine Benlamri (hereinafter: the Respondent),
and the Saudi club, Al Shabab (hereinafter: the Claimant) signed an employment contract
(hereinafter: the Contract) valid as from date of signature until 2 July 2020.
2.
On 4 December 2018, the parties agreed to extend the Contract for an additional year, thus
expiring on 2 July 2021.
3.
On 31 August 2019, the parties agreed to extend the Contract for an additional year, thus
expiring on 2 July 2022.
4.
On 16 September 2020, the parties entered into an “Agreement for mutual termination of
the employment contract” (hereinafter: the Settlement).
5.
Article 2 of the Settlement reads as follows:
The Player shall pay to the Club the total net amount of $1,200,000.00 will be paid as
following:
- USD 900,000 on or before 05.10.2020
- USD 100,000 on or before 15.01.2021
- USD 100,000 on or before 15.03.2021
- USD 100,000 on or before 15.05.2021
6.
On 5 October 2020, the Respondent signed for the French club Olympique Lyonnais.
7.
On 4 December 2020, the Claimant put the Respondent, including on copy the new club,
in default for the payment of the first instalment of the Settlement which was due on 5
October 2020.
8.
On 10 December 2020, the Claimant put the Respondent in default again, to no avail.
9.
On 14 December 2020, the Claimant re-send the previously sent letter from 10 December
2020.
II.
PROCEEDINGS BEFORE FIFA
10.
On 28 December 2020, 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
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11.
According to the Claimant, the Respondent has failed to respect the Settlement and
breaching the principle of pacta sunt servanda. Hence, in the Claimant’s view, the
Respondent should be compelled to respect the Settlement.
12.
The Claimant’s requests for relief are:
“In light of all of the above, Al Shabab Football Club respectfully requests the FIFA Dispute
Resolution Chamber to:
a) Enforce its jurisdiction over the matter;
b) Consider Djamel Eddine Benlamri as guilty for failing to comply with its obligations
towards Al Shabab Football Club, as established in the Termination Agreement entered into
between the parties on 16 September 2020.
c) Order Djamel Eddine Benlamri to pay Al Shabab Football Club the net amount of USD
900,000, corresponding to the first installment stipulated in clause 2 of the Termination
Agreement;
d) Determine that an interest rate of 10% (five per cent) per annum shall apply over the
total amount due by Djamel Eddine Benlamri as from 1 October 2020 until the date of
effective payment, as stipulated in the Termination Agreement5; and
e) Order Djamel Eddine Benlamri to bear any and all legal costs and expenses incurred by
Al-Shabab Football Club in connection with the present claim.
f) Should Djamel Eddine Benlamri not comply with the terms of the Termination Agreement
enforce the necessary sanctions against the Respondent in terms of art.17 par. 2 of the
RSTP.”
b.
Position of the Respondent
13.
Despite being invited to do so, the Respondent has failed to provide an answer to FIFA
within the prescribed deadline.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
14.
Competence and applicable legal framework
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 December 2020 and
submitted for decision on 15 July 2021. Taking into account the wording of art. 21 of the
January 2021 edition of the Rules Governing the Procedures of the Players’ Status
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Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
15.
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 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 Algerian player
and a Saudi club.
16.
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 28 December 2020, the October 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
17.
The Chamber 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 stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
18.
In this respect, the Chamber 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.
c.
Merits of the dispute
19.
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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.
20.
In this regard, the Chamber noted the contents of the correspondence sent by the
Respondent on 14 July 2021 after the formal closure of the investigation by FIFA General
Secretariat.
21.
The Chamber determined that it could not take into consideration the submission presented
by the Respondent in accordance with art. 9 par. 3 and par. 5 of the Procedural Rules.
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22.
Moreover, and due to the alleged lack of notification of the claim to the Respondent, the
DRC was able to confirm that all communications sent by the FIFA General Secretariat were
sent and delivered to the e-mail address which the Respondent indicated in the Settlement,
as well as confirmed by the Respondent’s current employer, Olympique Lyonnais, and
therefore shall be deemed a valid and binding mean of communication.
23.
Furthermore, as a consequence of the aforementioned consideration, the Chamber
emphasised that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a
decision upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
i. Main legal discussion and considerations
24.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the claim remained undisputed.
25.
In this context, the Chamber acknowledged that it its task was to ascertain if the
Respondent had breached the Settlement and the consequences thereof.
26.
The Chamber noted that the parties agreed in the Settlement that the Respondent shall pay
certain amounts on certain dates. In particular, the Claimant is requesting the first
instalment which was due on 5 October 2020.
27.
As the claim remains uncontested and no proof of payment has been submitted by the
Respondent, the Chamber decided that the Respondent had breached the Settlement
without just cause.
ii. Consequences
28.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
29.
The Chamber decided that the claim shall be accepted and the Respondent shall be liable
to pay the contractually agreed sum of USD 900,000 as requested by the Respondent.
30.
The Chamber in line with its constant jurisprudence as well as the requests of relief of the
Claimant, decided to grant interest at the rate of 5% per annum on said amounts as from their
due dates until the date of effective payment.
iii. Compliance with monetary decisions
31.
Finally, taking into account the aforementioned considerations, the Chamber referred to
par. 1 lit. and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the
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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.
32.
In this regard, the DRC highlighted that, against players, the consequence of the failure to
pay the relevant amounts in due time shall consist on a ban from playing in official matches
up until the due amount is paid. The overall maximum duration of the ban shall be six
months.
33.
Therefore, bearing in mind the above, the DRC decided that the DRC decided that, in the
event that the Respondent does not pay the amounts due to the Claimant within 45 days
as from the moment in which the Claimant, communicates the relevant bank details
to the Respondent, provided that the decision is final and binding, a ban from registering
any new players, either nationally or internationally, for the maximum duration of three
entire and consecutive registration periods shall become effective on the Respondent in
accordance with art. 24bis par. 2 and 4 of the Regulations.
34.
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. 24bis par. 8
of the Regulations.
d.
Costs
35.
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.
36.
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.
37.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief.
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IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Al Shabab, is partially accepted.
2.
The Respondent, Djamel Eddine Benlamri, has to pay to the Claimant, the following amount:
- USD 900,000 as outstanding amount plus 5% interest p.a. as from 6 October 2020 until
the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant
bank account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with
this decision to [email protected], duly translated, if applicable, into one of the official FIFA
languages (English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the
Respondent within 45 days, as from the notification by the Claimant of the relevant bank
details to the Respondent, the following consequences shall arise:
1. The Respondent shall be banned shall be restricted on playing in official matches up
until the due amount is paid and for the maximum duration of six months. The
aforementioned ban mentioned will be lifted immediately and prior to its complete
serving, once the due amount is paid. (cf. art. 24bis of the Regulations on the Status
and Transfer of Players).
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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
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