DRC Overdue Payables
Texto da decisão
REF. FPSD-16882
Decision of the
Dispute Resolution Chamber
passed on 19 December 2024
regarding an employment-related dispute concerning the player Aymen
Dahmen
BY:
Tarek BRAUER (Germany)
CLAIMANT:
Aymen Dahmen, Tunisia
Represented by Anis Ben Mime
RESPONDENT:
Al Hazem, Saudi Arabia
pg. 2
REF. FPSD-16882
I. Facts of the case
1.
On 31 May 2023, the Tunisian player, Aymen Dahmen (hereinafter: the Player or the
Claimant), and the Saudi Arabian club, Al Hazem (hereinafter: the Club or the Respondent)
entered into an employment contract (hereinafter: the Contract) valid as from 1 July 2023
until 30 June 2025.
2.
On 18 July 2024, the Claimant and the Respondent (hereinafter jointly referred as Parties),
concluded a mutual termination agreement (hereinafter the Termination Agreement).
According to the Termination Agreement, the Parties agreed on a compensation of USD
100,000 net “which is equivalent to the Player’s salary for two months and represents the agreed
compensation for termination, payable on September 30, 2024”.
3.
In addition, the Parties agreed on the following penalty clause (Clause 2 of the Agreement):
“In case the club fails to pay the agreed compensation mentioned above within 30 days of the
due date, the player is entitled to an amount of fifty thousand dollars (USD 50,000) as a
contractual penalty, provided that the player has notified the club of the payment default and
given the club a 15-day grace period to make the payment.”
4.
On 1 October 2024, the Claimant sent a default notice to the Respondent requesting the
amount of USD 100,000 arising from the Termination Agreement stating the following:
“If the club fails to pay a contractual penalty in the amount of USD 50,000 shall be applied
according to art. 4 of the termination agreement. After the deadline date if the payment is not
made in full, the later has to lodge a claim before the FIFA Football Tribunal […].”
5.
On 3 October 2024, the Club replied to the Player’s default notice as follows:
“In accordance with the agreement reached by both parties regarding the player's entitlement
to the mentioned amount, we want to inform you that the club is currently working on providing
the owed amount and is only awaiting the expected financial liquidity, which should arrive this
month at the very latest.”
II. Proceedings before FIFA
6.
On 3 November 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
a. Position of the Claimant
7.
The requests for relief of the Claimant, were the following:
pg. 3
REF. FPSD-16882
•
USD 100,000 as outstanding remuneration plus 5% interest as from 30 September
2024 until the date of effective payment;
•
USD 50,000 as penalty.
b. Position of the Respondent
8.
In their reply, the Respondent acknowledged that the amount of USD 100,000 remains
outstanding and alleged financial difficulties to justify the delay.
9.
However, the Respondent rejected the application of the penalty of USD 50,000 “due to
financial difficulties, as no damage was caused to the player by this unintentional delay.” In
addition, the Respondent argued that the amount of the penalty is “an arbitrary fine […] and
extremely harsh, especially considering it amounts to half of the outstanding amount.”
10. Therefore, the Respondent requested the following:
“To establish that the Claimant is entitled to the amounts in question amounting to USD 100,000
without any additional charges [and] reject applying the penalties (USD 50,000) or any interest.”
pg. 4
REF. FPSD-16882
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter: the 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 3 November 2024 and submitted
for decision on 19 December 2024. 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.
12. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 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 Tunisian player
and a Saudi Arabian club.
13. 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 (June 2024 edition), and
considering that the present claim was lodged on 3 November 2024, the June 2024 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
14. 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).
c. Merits of the dispute
15. Having established the competence and the applicable regulations, 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 assessing the matter at hand.
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REF. FPSD-16882
i. Main legal discussion and considerations
16. The Single Judge then moved to the substance of the matter, and took note of the fact that
the parties strongly dispute the applicability of the penalty stipulated in clause 2 of the
Termination Agreement.
17. In this context, the Single Judge acknowledged that his task was first, to determine the
outstanding amount and second, whether the penalty clause was proportionate.
18. In this regard, the Single Judge noted that the Parties concluded an employment contract
valid as from 1 July 2023 until 30 June 2025.
19. However, the Single Judge took note that on 18 July 2024, the Parties mutually terminated
the Contract and agreed on a compensation of USD 100,000 net to be paid on 30
September 2024, and a penalty of USD 50,000 in case of a delayed payment.
20. In this context, the Single Judge observed that the Player requested on 1 October 2024 the
payment of USD 100,000 arising from the Termination Agreement and that the Respondent
confirmed that the above amount remains outstanding, alleging financial difficulties to
justify the delay.
21. In this regard, the Single Judge recalled the well-established jurisprudence of the Dispute
Resolution Chamber that financial difficulties for which no evidence was presented cannot
discharge the Respondent from its financial liabilities vis-à-vis the Claimant. Therefore, in
the present case, the allegations regarding the financial difficulties cannot be accepted.
22. Consequently, in view of the above and according to the principle of pacta sunt servanda,
the Single Judge decided to award the outstanding amount of USD 100,000 to the Claimant.
23. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the DRC in this regard, the Single Judge decided to award the Claimant interest at the
rate of 5% p.a. on the outstanding amounts as from 1 October 2024 until the date of
effective payment.
24. Furthermore, and having established that the amount of USD 100,000 remains
outstanding, the Single Judge assessed whether the penalty clause was triggered and, if so,
whether it was proportionate.
25. The Single Judge first reiterated that according to clause 2 of the Termination Agreement,
“In case the club fails to pay the agreed compensation mentioned above within 30 days of the
due date, the player is entitled to an amount of fifty thousand dollars (USD 50,000) as a
contractual penalty, provided that the player has notified the club of the payment default and
given the club a 15 day grace period to make the payment.”
pg. 6
REF. FPSD-16882
26. In this regard and based on the documentation on file, the Single Judge noticed that the
penalty clause had been triggered as the Player sent a default notice giving the Respondent
a 15-day deadline to comply with its default on 1 October 2024, i.e. the day after the due
date.
27. In view of the above, the Single Judge observed that the penalty has been triggered as all
the requirements of clause 2 of the Termination Agreement have been met.
28. Regarding the proportionality of the penalty with the outstanding amount, the Single Judge
recalled that according to the longstanding DRC’s jurisprudence, a penalty clause needs to
satisfy the proportionality test on a case-by-case basis. In particular, the DRC considers that
penalties based on a percentage of the principal amount due are considered proportional
if the amount due as penalty does not exceed 50% of the principal amount due.
29. In the case at hand, the Single Judge noted that the overdue amount was USD 100,000 and
the penalty was USD 50,000, i.e. 50% of the overdue amount.
30. Therefore, in view of the above, the Single Judge considered that the penalty of USD 50,000
is proportionate and reasonable.
31. Consequently, the Single Judge decided that the penalty of USD 50,000 shall be awarded to
the Player.
ii. Sanctions
32. In continuation, 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.
33. To this end, the Single Judge 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.
34. Accordingly, the Single Judge 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.
35. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the club. On account of 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 club in accordance with art. 12bis par. 4 lit. a) of the
Regulations.
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REF. FPSD-16882
36. 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
37. 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 his 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.
38. 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.
39. 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.
40. 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.
41. 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
42. 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.
43. 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.
pg. 8
REF. FPSD-16882
44. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for
relief made by any of the parties.
pg. 9
REF. FPSD-16882
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Aymen Dahmen, is partially accepted.
2.
The Respondent, Al Hazem, must pay to the Claimant the following amount(s):
- USD 100,000 as outstanding remuneration plus 5% interest p.a. as from 1 October 2024
until the date of effective payment;
- USD 50,000 as contractual 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 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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REF. FPSD-16882
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).
CONTACT INFORMATION
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396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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