DRC Overdue Payables
Texto da decisão
REF FPSD-3941
Decision of the
Dispute Resolution Chamber
passed on 9 February 2022
regarding an employment-related dispute concerning the player Yambere
Cedric
BY:
Alexandra Gomez Bruinewood (Uruguay / The Netherlands)
CLAIMANT:
Player Yambere Cedric, France
Represented by Mr Matthieu Barandas
RESPONDENT:
Al Ettifaq, Saudi Arabia
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REF FPSD-3941
I.
Facts of the case
1.
On 01 July 2019, the French player Yambere Cedric (hereinafter: “the player” or “the
Claimant”) and the club Al Ettifaq (hereinafter: “the club” or “the Respondent”) concluded an
employment contract (hereinafter: “the contract”) valid from 01 July 2019 until 30 June 2022.
2.
Article 4.1 of the contract stated that the club should complied with the advance payment of
USD 400,000 net as signing on fee.
3.
Article 4.2 of the contract stated that the club should pay to the player a monthly salary of
USD 46,333 net including air tickets costs at the end of each calendar month.
4.
Article 10.2 of the contract stated that the two parties might agree on terminating the
contract before the date of its expiry.
5.
On 17 November 2020, the player and the club concluded a settlement agreement
(hereinafter: “the agreement”) to settle all rights and obligations under the contract, the
proceedings pending before FIFA under number 20-01149, the proceedings in relation to the
contract´s termination by the club and all legal relationships between the club and the player.
6.
Article 3.1 of the agreement stated that the club should pay the total amount of USD 509,633
net corresponding to the salaries that the player should have received from October 2020 to
August 2021.
7.
Article 3.2 of the agreement stated that the settlement amount should be paid in eleven
instalments according to the following schedule:
USD 46,333 within 10 days of the signature of the agreement.
USD 46,333 on 5 December 2020.
USD 46,333 on 5 January 2021.
USD 46,333 on 5 February 2021.
USD 46,333 on 5 March 2021.
USD 46,333 on 5 April 2021.
USD 46,333 on 5 May 2021.
USD 46,333 on 5 June 2021.
USD 46,333 on 5 July 2021.
USD 46,333 on 5 August 2021.
USD 46,333 on 5 September 2021.
8.
Article 4.1 of the agreement stated that “in the event that one of the above-mentioned
deadlines is not honoured by the CLUB, the PLAYER may then take advantage of the forfeiture
of the term of the present agreement and immediately request the full amount set out in
article 3.1 remaining due, subject to having sent a formal notice by email to the CLUB to
regularise the situation that has remain unsuccessful within 15 days of its receipt”.
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9.
Article 4.2 of the agreement stated that in the event of a breach from the club in the
performance of the agreement, especially concerning the payments agreed on article 3, the
club should pay the player a sum of USD 100,000 as a penalty clause for compensation.
10. Article 4.3 of the agreement stated that if the club failed to comply with the obliged payment,
the amount should be increased by late payment interest of 15% of the total sum remaining
due.
11. On 11 January 2021, the player sent a default notice to the club requesting the payment of
the total amount of USD 46,333 corresponding to the third instalment of the agreement. (cf.
article 4.1 of the agreement). The player granted to the club 15 days following the reception
of the notice to fulfill their obligations.
12. On 08 February 2021, the player sent a default notice to the club requesting again the
payment of the total amount of USD 46,333 corresponding to the third instalment of the
agreement. (cf. article 4.1 of the agreement). The player granted to the club 15 days following
the reception of the notice to fulfill their obligations.
13. On 23 August 2021, the player sent a default notice to the club requesting the payment of
the total amount of USD 46,333 corresponding to the tenth instalment of the agreement. (cf.
article 4.1 of the agreement). The player granted to the club 15 days following the reception
of the notice to fulfill their obligations.
14. On 13 September 2021, the player sent a default notice to the club requesting the payment
of the total amount of USD 46,333 corresponding to the last instalment of the agreement.
(cf. article 4.1 of the agreement). The player granted to the club 15 days following the
reception of the notice to fulfill their obligations. In addition, the player recognized having
received the rest of instalments but with significant delay.
15. The club did not respond the last default notice.
II. Proceedings before FIFA
16. On 7 October 2021, 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
17. The player lodged the present claim before FIFA against the club requesting the total
amount of USD 161,333 corresponding to the last instalment of the agreement, the
application of the penalty clause, the damages for abusive resistance and an indemnity for
the legal costs. The amount requested was breakdown as follows:
USD 46,333 net as the last instalment (cf. article 3.2 of the agreement);
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REF FPSD-3941
USD 100,000 net as the contractually agreed penalty clause (cf. article 4.2 of the
agreement).
EUR 10,000 net as damages for abusive resistance.
EUR 5,000 net as compensation for the legal costs incurred.
18. In addition, the player requested the application of a default interest of 15% from the
date of notification of the last formal notice addressed to the club (i.e. 13 September 2021)
as it was established in article 4.3 of the agreement.
19. Furthermore, the player requested the imposition of financial and sporting sanctions by
the FIFA Disciplinary Chamber.
b. Position of the Respondent
20. On 18 November 2021, the club contested the amounts requested by the player
communicating that the application of the penalty cost and the interest rate was abusive.
21. The club recognise that they had paid ten instalments excepting the eleven one corresponded
to September 2021 which its due within a month (i.e. until 18 December 2021).
22. Moreover, the club stated that the cause of the delay was “due to the global extension of the
covid-19 and its dangerous health effects to the Saudi government as all governments around
the world took decision to stop and postpone all sportive activities and competitions for a
certain period in order to preserve lives and health which was in return impacted the club’s
income.”
23. The club requested FIFA to be condemned to pay the amount of USD 46,333 to the Claimant,
which is due for the last instalment of the agreement, and to fix a proportional and adequate
interest rate, in accordance with the usual practices.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
24. First of all, the Dispute Resolution Chamber (hereinafter also referred to as “the Single 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 07 October 2021 and submitted for
decision on 9 February 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.
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25. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 (August 2021 edition), she
is competent to deal with the matter at stake, which concerns an employment-related dispute
with an international dimension between a French player and a Saudi club.
26. Furthermore, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (August 2021 edition), and
considering that the present claim was lodged on 07 October 2021, the August 2021 edition
of said regulations (hereinafter: “the Regulations”) is applicable to the matter at hand as to
the substance.
b. Burden of proof
27. 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 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
28. Her 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 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
29. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note that the parties signed the agreement, according to which the
Respondent undertook to pay to the Claimant the total amount of USD 509,633 in eleven
instalments.
30. The Single Judge recalled that, on 7 October 2021, the Claimant lodged the present claim
against the Respondent before FIFA, maintaining that the latter has overdue payables towards
him in the total amount of USD 46,333 corresponding to the last instalment of the agreement.
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REF FPSD-3941
31. The Single Judge further observed that the Claimant asked to be awarded 15 % as default
interest (cf. article 4.3 of the agreement) from the date of notification of the last formal notice
addressed to the club (i.e. 13 September 2021).
32. Moreover, the Single Judge acknowledged that the Claimant requested the imposition of a
penalty amounting to USD 100,000 net as established in article 4.2 of the agreement.
33. On the other hand, the Single Judge noted that the Respondent disputed the payment of
certain financial obligations as per the agreement, namely:
USD 100,000 net as the contractually agreed penalty clause (cf. article 4.2 of the
agreement) and
Application of a default interest of 15% (cf. article 4.3 of the agreement).
34. In this context, the Single Judge took particular note of the fact that, on 13 September 2021,
the Claimant put the Respondent in default of payment of the last instalment, setting a time
limit of 15 days in order to remedy the default.
35. Consequently, the Single Judge concluded that the Claimant had duly proceeded in
accordance with art. 12bis par. 3 of the Regulations, which stipulates that the creditor (player
or club) must have put the debtor club in default in writing and have granted a deadline of
at least ten days for the debtor club to comply with its financial obligation(s).
36. Subsequently, the Single Judge focused her attention to the reasons provided by the
Respondent not to honour its contractual obligations.
37. In this respect, the Single Judge noted that the Respondent recognised owing the last
instalment of the agreement to the Claimant, however it argued financial distress due to the
COVID-19 outbreak.
38. The Single Judge underlined that the Respondent did not file together with its reply any
documentation pertaining to the COVID-19 pandemic and/or its financial issues.
39. In addition, the Single Judge pointed out that at the moment of the conclusion of the
agreement, the COVID 19 pandemic was ongoing for several months, hence the Respondent
was well aware about the situation.
40. Consequently, the Single Judge concluded that the club’s argumentation related to the nonpayment of the last instalment of the agreement due to the player, shall be set aside and the
player shall be awarded the amount of USD 46,333 net.
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ii. Consequences
41. Having stated the above, the members of the Single Judge turned their attention to the
question of the consequences of such unjustified breach of the agreement committed by the
Respondent.
42. At this stage, the Single Judge established that the Respondent had delayed a due payment
for more than 30 days without a prima facie contractual basis.
43. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge reiterated that the Respondent is liable to pay to the Claimant the
outstanding amount deriving from the agreement concluded between the parties, i.e. USD
46,333 net.
44. In continuation, the Single Judge focussed his attention to the Claimant´s request for an
interest at a rate of 15% on the outstanding amount based on article 4.3 of the agreement.
45. The Single Judge pointed out that article 4.3 of the agreement clearly established a default
interest of 15% in case of late payment of the instalments by the Respondent without
specifying a period of time, i.e. daily, monthly or annually.
46. At this stage, the Single Judge took note of the Respondent´s argument that the special
interest should not apply since it was abusive.
47. In this regard, the Single Judge held that taking into consideration the Claimant´s request as
well as the constant practice of the Dispute Resolution Chamber, a default interest of 15%
p.a. is considered reasonable.
48. As a result, the Single Judge pointed out that the cited Respondent´s argument should be
rejected.
49. Therefore, the Single Judge decided to award an annual interest of 15% on the outstanding
amount of USD 46,333 from 29 September 2021 (i.e. 15 days after the default notice dated
13 September 2021) until the date of effective payment.
50. In continuation, the Single Judge focused her attention to the Claimant´s request for USD
100,000 as penalty based on article 4.2 of the agreement.
51. In this context, the Single Judge took note of the Respondent´s argument that the relevant
penalty was abusive.
52. The Single Judge underlined that it was imperative to analyse all the circumstances
surrounding this case.
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53. First, the Single Judge pointed out that the penalty amounts to almost 20% of the total value
of the agreement, i.e. USD 509,633.
54. In continuation, the Single Judge recalled that the parties signed the contract on 1 July 2019
until 30 June 2022 and that the Respondent terminated it triggering the claim lodged by the
player before FIFA in November 2020.
55. Subsequently, the Single Judge pointed out that on 17 November 2020, the parties concluded
the agreement in order to settle the previous dispute amicably.
56. The Single Judge was keen to emphasise that the Claimant was forced to lodge two claims in
order to receive his remuneration and that article 4.2 of the agreement was explicitly included
in it exactly to compensate the player in case of delay or abusive behaviour by the club.
57. Furthermore, the Single Judge underlined that the last instalment of the agreement is still
outstanding and that the Respondent paid the rest of the instalments of the agreement late.
58. In view of all the above, the Single Judge concluded that based on all the previous
considerations and previous jurisprudence of the DRC (ref. 11130438) and CAS (ref. CAS
2014/A/3664; CAS 2015/A/4057 and CAS 2015/A/3909) the penalty, amounting to USD
100,000 net should be granted in full to the Claimant.
59. In continuation, the Single Judge noted that the Claimant requested an amount of EUR 10,000
net as damages for abusive resistance.
60. In this respect, the Single Judge held that the Claimant failed to meet his burden of proof and
a result decided to reject such request.
iii. Compliance with monetary decisions
61. In continuation, taking into account the consideration under number 42. above, 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.
62. The Single Judge established that in virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. Therefore, and in the absence of the
circumstance of repeated offence, the Single Judge decided to impose a warning on the
Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.
63. In this respect, the Single Judge wished to highlight that a repeated offence will be considered
as an aggravating circumstance and lead to more severe penalty in accordance with art. 12bis
par. 6 of the Regulations.
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64. 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.
65. 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.
66. 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 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.
67. 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.
68. 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
69. 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.
70. Furthermore, the Single Judge recalled the contents of art. 25 par. 8 of the Procedural Rules,
and decided that no legal costs shall be awarded in these proceedings.
71. Lastly, the Single Judge 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, Yambere Cedric, is partially accepted.
2.
The Respondent, Al Ettifaq, has to pay to the Claimant, the following NET amounts:
- USD 46,333 as outstanding remuneration plus 15% interest p.a. as from 29 September
2021 until the date of effective payment and
- USD 100,000 as penalty.
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 the ban shall
be 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
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 article 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).
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