Labour Disputes
Texto da decisão
REF FPSD-5828
Decision of the
Dispute Resolution Chamber
passed on 15 June 2022
regarding an employment-related dispute concerning the player Djamel
Eddine Benlamri
BY:
Frans de Weger (Netherlands), Chairperson
Johan van Gaalen (South Africa), member
Daan de Jong (Netherlands), member
CLAIMANT:
Al Shabab, Saudi Arabia
Represented by Mohmed Khalied Allie
RESPONDENT:
Djamel Eddine Benlamri, Algeria
Represented by Pedro Macieirinha and Cláudia Martins
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REF FPSD-5828
I.
Facts of the case
1.
On 15 July 2021, the Dispute Resolution Chamber passed a decision in a contractual dispute
between the Saudi Arabian club Al Shabab (hereinafter: the club) and the Algerian player
Djamel Eddine Benlamri (hereinafter: the player), ordering the player to pay an amount of
USD 900,000 to the club.
2.
The club argued that the amount of USD 900,000 had remained outstanding as per a
settlement agreement dated 16 September 2020, concluded between the parties, which
aimed at terminating the employment relationship between them, in return of which the
player would pay an amount of USD 1,200,000 to the club.
3.
On 29 August 2021, the player and the club signed a new settlement agreement (hereinafter:
the settlement agreement dated 29 August 2021), based on which it was agreed that the
player would pay the total amount of EUR 1,150,000, as follows, to the club:
-
4.
EUR 175,000 on 30 September 2021;
EUR 135,000 on 30 October 2021;
EUR 135,000 on 30 November 2021;
EUR 60,000 on 31 December 2021;
EUR 60,000 on 31 January 2022;
EUR 60,000 on 28 February 2022;
EUR 60,000 on 31 March 2022;
EUR 60,000 on 30 April 2022;
EUR 135,000 on 31 May 2022;
EUR 135,000 on 30 June 2022;
EUR 60,000 on 31 July 2022.
The settlement agreement dated 29 August 2021 contains inter alia the following clauses:
‘Benlamri shall have a grace period of up to 10 (Ten) days from the due date of each
instalment for any unforeseen delays that may occur. Should the payment be delayed
beyond the grace period, a penalty of 20% (Twenty percent) of the specific overdue
instalment shall be paid in conjunction with the late instalment’.
‘Should Benlamri fail to pay 2 (two) consecutive payments, all outstanding amounts in
addition to a 20% penalty of the full amount referred to in clause 1.1. shall become
immediately become payable and the decision of the FIFA matter shall immediately
become enforceable’.
‘By no later than 30 September 2021, Benlamri shall through his various social media
platforms and through a media statement make a public apology to Al Shabab Football
Club and its President, Mr Khaled Al Baltan, for any defamatory and/or negative
statements made my Benlamri’.
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‘Benlamri agrees that should he not fulfil his obligations as per clause 1.1 and its subclauses, Al Shabab has hereby been granted the authority to request that Qatar SC make
payment of the full amount due to Al Shabab on behalf of Benlamri and make the
necessary deductions to his contractual payments...’.
5.
On 5 October 2021, the club put the player in default for the outstanding amount of EUR
175,000, in reply to which on 14 October 2021, the player paid an amount of EUR 170,000
to the club.
6.
On 15 October 2021, the club informed the player and his lawyer that an amount of EUR
5,000 had still to be paid, however to no avail.
7.
On 28 October 2021, the amount of EUR 135,000 was paid by the player to the club.
8.
The third instalment of EUR 135,000 remained unpaid on 30 November 2021, as a result of
which on 11 December 2021, the club put the player in default for the outstanding amount
plus penalties, however to no avail.
9.
On 20 December 2021, club puts the player in default for the outstanding amount of
September 2021 and November 2021, providing him a 15 days’ deadline to remedy his
default, however to no avail.
10. On 21 December 2021, the player paid an amount of EUR 60,000 to the club, corresponding
to the 31 December 2021-instalment.
11. On 29 December 2021, the club put the player in default for the outstanding amount of EUR
201,897.63. On 30 December 2021, the club agreed that the payment date of said amount
would be extended until 15 January 2022, however to no avail.
12. On 21 January 2021, the club again provided the player with an extension of the deadline to
pay the amount of EUR 201,897.63, this time until 24 January 2022, however again to no
avail.
13. On 25 January 2022, the player paid an amount of EUR 50,000 to the club, linked to the 31
January 2022-instalment.
14. On 8 February 2022, the club put the player again in default for the outstanding amount of
EUR 201,897.63, suggesting a payment date at the beginning of February 2022, however to
no avail.
15. On 10 February and 11 February 2022, the player paid an amount of EUR 30,000 to the club.
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16. On 24 February 2022, the club put the player again in default for the outstanding amounts,
however to no avail.
17. On 1 March 2022, the club put the player in default for the outstanding amounts as per the
settlement agreement dated 29 August 2021, providing him at 10 days’ deadline to remedy
his default, however to no avail.
18. On 15 March 2022, the club sent an email to the players new club Qatar SC, requesting about
the payment of the outstanding amounts as per the settlement agreement dated 29 August
2022, however to no avail.
19. On 30 March 2022, the club put the player in default for the outstanding amounts, however
again to no avail.
20. On 2 April 2022, the club put the player in default for the outstanding amounts as per the
settlement agreement dated 29 August 2021, providing him at 10 days’ deadline to remedy
his default, however to no avail.
II. Proceedings before FIFA
21. On 22 April 2022, the club filed the claim at hand before FIFA. A brief summary of the position
of the parties is detailed in continuation.
a. Position of the club
22. In its claim, the club explains that an amount of EUR 475,000 has been paid by the player to
the club, consisting of the following payments:
-
EUR 170,000 on 14 October 2021;
EUR 135,000 on 28 October 2021;
EUR 60,000 on 21 December 2021;
EUR 50,000 on 25 January 2022;
EUR 30,000 on 10 February 2022;
EUR 30,000 on 11 February 2022.
23. What is more, the club explains that an amount of EUR 210,000, excluding penalties,
remained unpaid, despite the fact that on 2 April 2022, the player was given a 10 days’
deadline to remedy his default. As a result, the club deems that based on art. 1.3 of the
settlement agreement dated 29 August 2021, the full outstanding amount of EUR 905,000
became due and payable.
24. Additionally, the club explains that it found out that the player in the meanwhile had
terminated his contract with the Qatari club Qatar SC.
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25. The requests for relief of the club, as amended, were the following:
-
-
EUR 675,000 as outstanding amount as per the settlement agreement dated 29 August
2021, i.e. EUR 1,150,000 -/- EUR 475,000;
EUR 230,000 as 20% of the amount of EUR 1,150,000 as penalty for the late payment of
the amounts abovementioned, based on clause 1.2 of the settlement agreement dated 29
August 2021:
5% interest p.a. as from 1 March 2022 on the amount of EUR 905,000;
To order the player to provide a copy of his termination and/or settlement agreement with
Qatar SC;
Legal costs and sanctions to be imposed on the player;
Impose directly sanctions based on art. 24 RSTP, until the full amount is paid, as agreed by
the player in the settlement agreement;
Alternatively, to establish that, if the player signs a new contract, that his new club should
pay the salaries the player is entitled instead to Al Shabab to set off the debt, as agreed by
the player in the settlement agreement.
b. Position of the player
26. In its reply, the player argues that in the proceeding in the case FPSD-626, he never received
the claim of the club against him, was not invited to present his position, as ‘part of FIFA’s
emails went to spam’ and also did not understand any emails with the notifications, as he
does not speak English.
27. Further, the player argues that on 14 July 2021, he found out that the club lodged a claim
against him and requested FIFA to confirm said circumstance. What is more, the player, via
his new appointed legal representative, received the findings of the decision passed on 15
July 2021 and also requested the grounds, which were communicated to the player on 9
August 2021.
28. Additionally, the player explains that afterwards, he was in a difficult financial position, as he
had to pay an amount of USD 900,000 to the club, which circumstance prevented him from
lodging an appeal before CAS.
29. Also, the player explains that in view of the above circumstances, he was put under duress
by the club (based on art 29 and 30 of the Swiss Code of Obligations) to sign the settlement
agreement dated 29 August 2021, by means of which he had to pay an amount of EUR
1,150,000, as well as by means of which he potentially had to pay ‘excessive and abusive
penalties’.
30. The player further confirms that he paid an amount of EUR 475,000 to the club, but could
not comply with paying the full amount to the club.
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31. In conclusion, the player deems that he is not bound to the settlement agreement concluded
on29 August 2021, as he acted in good faith, was put under duress, was not at fault at all in
the sense of art. 97 of the Swiss Code of Obligations and his default occurred through no
fault of his own as per art. 103.2 of the Swiss Code of Obligations.
32. What is more, as to the penalty clause agreed upon in the settlement agreement, the player
argues that said clause is to be considered excessive – also seen in light of the outbreak of
the COVID-19 pandemic - and should thus be reduced to 1%.
33. In conclusion, the player argues that – since he was put under duress – the settlement
agreement should not be upheld, and further asked for the reduction of the agreed penalty
clause.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
34. 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 22 April 2022 and submitted for decision
on 15 June 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.
35. 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 (March 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 an Algerian player and
a Saudi Arabian club.
36. 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 (March 2022 edition), and
considering that the present claim was lodged on 22 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
37. 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
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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
38. 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.
i. Main legal discussion and considerations
39. Before entering into the substance of the matter at hand, the members of the Chamber
wished to point out, as a preliminary remark, that in the previous case FPSD-626, it was
analysed and accepted by the respective judges that the notification of the claim was done
correctly. In said matter, which constituted a claim from a club against a player, the FIFA
Administration relied for notification of the claim on an email address of the player provided
by the club, which email address was consequently confirmed by the players’ club at that
moment, Olympique Lyonnais.
40. Consequently, the decision passed on 15 July 2021, the grounds of which were notified on
9 August 2021, is therefore correct, and in the meanwhile final and binding, as there was no
appeal lodged before CAS.
41. 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 the settlement agreement
dated 29 August 2022 can be (fully) upheld in the matter at hand, and if so, to what
consequences the alleged non-compliance of it by the player would lead.
42. In this context, the Chamber acknowledged that it its task was to determine whether the
reasons brought forward by the player, namely (a) that the settlement agreement dated 29
August 2021 cannot be upheld, as he was put under duress while signing it and (b) the
penalty clause in the settlement agreement is excessive and disproportionate, would exempt
the player from complying with the financial conditions laid down in the settlement
agreement dated 29 August 2021.
43. Entering into the substance of the matter at hand, the members of the Chamber were of the
opinion that the player’s first argument, i.e. that he was put under duress while signing the
settlement agreement dated 29 August 2021, shall not be upheld. It appeared to the
members of the Chamber that the player apparently signed on his own free will the
settlement agreement dated 29 August 2021, which rescheduled some of his debts towards
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the club, and by the time of the signature, he had already been in contact with a legal
representative as from July 2021, which also advised him in the current matter at hand. What
is more, the club’s allegations that it was said legal representative which advised the player
on the conclusion of the settlement agreement dated 29 August 2021, remained uncontested
by the player.
44. Moreover, the Chamber could not find – based on the information provided – any elements
that led to the player signing to the settlement agreement in straightened circumstances. The
player already started to pay some of the debts, but allegedly chose to agree to a new
payment plan in a new settlement agreement, concluded on 29 August 2021.
45. In conclusion, the members of the Chamber deemed that the settlement agreement dated
29 August 2021 can be upheld and is valid and binding on the parties.
46. Furthermore, as to the player’s second argument, i.e. the allegation that the penalty clause
in the settlement agreement is excessive and disproportionate, the members of the Chamber
concluded that the said penalty of 20% of the overall due amount of EUR 1,150,000, in the
circumstances of the matter at hand is not considered to be excessive and disproportionate,
following the jurisprudence of the Football Tribunal in this respect.
47. The members of the Chamber considered that the player was already in delay of the first
settlement agreement dated 16 September 2020, and that in the meanwhile, a decision in
favour of the club was passed. Taking furthermore into account that also under the second
settlement agreement, several amounts remained unpaid by the player, and that the penalty
of 20% of EUR 1,150,000, i.e. EUR 230,000 correlates to approximately 35% of the
outstanding amount of EUR 675,000, the Chamber established that under the current
circumstances the penalty cannot be considered excessive or disproportionate.
48. In conclusion, the members of the Chamber decided to upheld the penalty clause as agreed
upon between the parties in the settlement agreement dated 29 August 2021.
ii. Consequences
49. Finally, the Chamber observed that the financial obligations deemed as outstanding in the
present case correspond to the unpaid part of the amount of EUR 1,150,000, i.e. EUR
675,000, as per the settlement agreement dated 29 August 2022, as well as a penalty in the
amount of EUR 230,000.
50. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the player is liable to pay to the club the amounts claimed as
outstanding under the settlement agreement dated 29 August 2022, i.e. EUR 675,000, as
detailed above.
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51. In addition, taking into consideration the player’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the player interest at the rate of 5%
p.a. on the outstanding amount of EUR 675,000 as from 1 March 2022, the day following
the day on which the second consecutive payment as per the settlement agreement remained
unpaid), until the date of effective payment.
52. In addition, the members of the Chamber decided that the player is liable to pay to the club
a penalty of EUR 230,000, corresponding to 20% of the total due amount of EUR 1,150,000,
based on clause 1.2 of the settlement agreement dated 29 August 2021.
53. In addition, the members of the Chamber established that the club’s requests to (a) order the
player to provide a copy of his termination and/or settlement agreement with Qatar SC in
view of the contents of the settlement agreement and (b) to order the player that if he signs
a new contract, his new club should pay the salaries to the club instead of to the player in
order to set off the existing debt, shall be rejected. The Chamber was of the opinion that
such requests should be entertained in the scope of new claim lodged by the club against
Qatar SC before the Players’ Status Chamber.
54. Additionally, the club’s request to directly impose sanctions based on art. 24 RSTP on the
player, based on the settlement agreement dated 16 September 2020 in combination with
the decision dated 15 July 2021, shall also be rejected, as the parties – on 29 August 2021 concluded a new settlement agreement superseding the previous decision and settlement
agreement. As a result, the members of the Chamber agreed that the contents of art. 24
RSTP shall only be applied, would the player not comply with the contents of the current
decision.
55. Furthermore, as regards the claimed legal expenses s, the members of the Chamber referred
to art. 25 par. 8 of the Procedural Rules as well as to the long-standing and well-established
jurisprudence of the DRC, in accordance with which no procedural compensation shall be
awarded in proceedings in front of the Dispute Resolution Chamber. Consequently, the DRC
judge decided to reject the club’s request relating to legal expenses.
iii. Compliance with monetary decisions
56. 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.
57. In this regard, the Chamber highlighted that, against players, the consequence of the failure
to pay the relevant amounts in due time shall consist of a restriction on playing in official
matches up until the due amounts are paid. The overall maximum duration of the restriction
shall be of up to six months.
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58. Therefore, bearing in mind the above, the Chamber decided that the player must pay the full
amount due (including all applicable interest) to the club within 45 days of notification of the
decision, failing which, at the request of the creditor, a restriction on playing in official
matches for the maximum duration of six months shall become immediately effective on the
player in accordance with art. 24bis par. 2, 4, and 7 / art. 24 par. 2, 4, and 7 of the
Regulations.
59. The player shall make full payment (including all applicable interest) to the bank account
provided by the club in the Bank Account Registration Form, which is attached to the present
decision.
60. The Chamber 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
61. 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.
62. 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.
63. 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, Al Shabab, is partially accepted.
2.
The Respondent, Djamel Eddine Benlamri, has to pay to the Claimant, the following
amount(s):
- EUR 675,000 as outstanding amount, plus 5% interest p.a. as from 1 March 2022 until
the date of effective payment;
- EUR 230,000 as penalty.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
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 restricted on playing in official matches up until the due
amounts are paid. The overall maximum duration of the restriction shall be of up to six
months.
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 six months.
6. 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.
7. 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
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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